R. v. Taylor, 2021 BCPC 142 (CanLII)
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2021 BCPC 142 |
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Date: |
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File No: |
AJ05943049‑2 |
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Registry: |
Abbotsford |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
JASON TAYLOR
ORAL REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE C.D. SICOTTE
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K. Soles |
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Counsel for the Defendant: |
J. Krueger |
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Abbotsford, B.C. |
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Date of Hearing: |
April 23, 2021 |
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Date of Judgment: |
May 25, 2021 |
[1] Jason Taylor has applied to this court seeking to have his traffic ticket dismissed as he alleges that his right to be tried within a reasonable time as enshrined in s.11(b) of the Canadian Charter of Rights has been breached.
[2] For the reasons that follow, Mr. Taylor’s application is dismissed and the matter remitted back to the Ticket Centre for re-scheduling of a hearing on the merits.
Introduction
[3] Mr. Taylor was ticketed on July 30, 2019 for the improper display of a license plate contrary to s. 3.02 of the Motor Vehicle Act regulations. The following timeline applies.
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Ticket date: |
July 30, 2019 |
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Ticket disputed: |
August 6, 2019 |
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Counsel retained: |
August 14, 2020 |
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Hearing dates offered: |
January 21, 2021 |
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Hearing date: |
March 19, 2021 |
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Charter notice filed: |
March 19, 2021 |
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Charter argument: |
April 21, 2021 |
[4] The total delay between the ticket date and the first hearing date is 19 months and 20 days. Defence counsel agrees that almost 4 months should be subtracted from that total bringing the delay down to 15 months and 24 days. I’ll address that calculation later but, for the moment, it is clear that the presumptive prejudice over 18 months as established in R. v. Jordan, 2016 SCC 27 does not apply.
The Legal Test
[5] In R. v. Ali Ismail, 2020 BCPC 144 at paras. 5 and 6 Judge Boblin set out part of the legal test to be applied on s. 11(b) Charter applications as follows:
[5] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada identified a culture of complacency towards delay in the criminal justice system and established a new framework for analysis on an application for a stay of proceedings due to unreasonable delay.
[6] At the core of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling for superior court trials is 30 months. The presumptive ceiling for provincial court trials is 18 months. If the total time from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable.
[6] At paras 82 and 83 of the Jordan decision, the majority of the court stated:
[82] A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial … is less than 18 months for cases going to trial in the provincial court … then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (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. Absent these two factors, the s. 11(b) application must fail.
[83] We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases.
[Emphasis added.]
Steps to Expedite the Proceeding
[7] I note as well that many of the comments in Jordan with respect to the behaviour of Crown and defence are of little application in traffic court where the vast majority of the time a police officer fills the roles of prosecutor and sole witness for the Crown. Admissions are not sought from the defence and there is little a defendant can do to expedite the proceeding.
[8] Here Mr. Taylor filed his dispute to the traffic ticket within 7 days despite having a 30 day limitation period. Within 5 days of being retained, Mr. Taylor’s lawyer sent a letter to the Violation Ticket Centre ensuring both that Mr. Taylor’s address was current and that counsel would be available for any scheduled hearing date. Further, when the Ticket Centre did email defence counsel on January 21, 2021 with suggested hearing dates, defence counsel responded the very next day accepting the first available hearing date.
[9] I find that defence counsel has demonstrated that Mr. Taylor did all he could to “… get the case heard as quickly as possible” as required in para. 84 of Jordan.
Time Markedly Exceeded
[10] Did this case take markedly longer than it should have?
[11] Mr. Taylor was charged with improper display of his license plate. Defence counsel submitted that the hearing would likely take about 15 minutes. Even if double that time is necessary it still is a very brief and very straightforward hearing. Crown Counsel did not dispute this submission.
[88] The reasonable time requirements of the case will increase proportionally to a case's complexity. As Sopinka J. wrote in Morin: "All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins" (pp. 791-92).
[89] In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.
[13] During submissions I asked Crown Counsel when they could likely schedule a half day criminal trial in Abbotsford right now. He advised me that it would likely happen sometime in the fall. I sit regularly in Abbotsford Provincial Court and confirm that Crown Counsel’s estimate if anything is too long. In this jurisdiction, barring problems with the schedules of witnesses or counsel, a half-day trial could easily be scheduled within 6 months.
[14] In para. 91 of Jordan the majority stated that in assessing the reasonableness of any delay:
… trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. All that said, this determination is a question of fact falling well within the expertise of the trial judge…
[15] To assist me in my determination of this issue defence counsel provided a number of cases.
[16] In R. v. Baryar, 2021 BCPC 40 Judge Frame stayed proceedings stating at para. 20, “I cannot say that 17 months and 22 days is unreasonable for a traffic ticket to get to trial in all cases. It was in this case.”
[17] In R. v. Podger, 2009 BCPC 135, a pre-Jordan case, Judge Wallace found the delay to be unreasonable and directed a stay of proceedings on a 14 month delay in traffic court after making a finding that the accused suffered prejudice, something the court was required to do before Jordan. Judge Wallace also stated however in para. 23, “I also infer there is a general prejudice to an individual from the passage of over a year in time because this length of time does affect a person’s memory.”
[18] Finally, at paras. 26 and 27 of Podger, Judge Wallace stated:
[26] Having knowledge of how matters are scheduled in this local courthouse when they are required to be set by the judicial case managers in this courthouse, I am sure that this matter would not have taken, without any delay on the part of the accused, 13 and three-quarter months to get a first hearing. However, the government has chosen to deal with this type of matter through a central booking system. Either cases get lost in the system for some period of time or the government has not dedicated enough resources to keep up with the number of disputes made. Accordingly, matters may not be dealt with in any kind of reasonable time. The Morin decision refers to the matter of where the government chooses to put its resources, where Mr. Justice Sopinka stated:
While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly.
[27] It appears to me that the government has decided to save financial resources by somehow operating a central system for dealing with ticket disputes which it appears has led to a long delay in the matters being heard before the court. I accept what the Supreme Court of Canada said that individuals who are dealing with minor offences should not have to compromise their right to a speedy trial because the government decides it is going to do what is most efficient for them, without taking into account the stress and prejudice this brings to individuals dealing with what are in many cases very minor traffic offences in many cases, which is specifically the case here.
[19] In R. v. Drummond, 2009 BCPC 57, another case from 2009, Judge Schmidt also found specific prejudice and stayed proceedings. He made the following comments at paras 28-30:
[28] All three factors in the delay appear to be systemic and entirely unnecessary. The fact that they are long standing and typical should be a matter of concern to the courts in the same way they are a matter of concern to Mr. Drummond and other persons charged with offences.
[29] It is unconscionable that a Notice to 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.
[30] The average citizen in Canada only interacts with the justice system in traffic matters and small claims matters. That they should be treated so shabbily in traffic matters is cause for wonderment.
[20] In R v. Tran, 2014 BCPC 228 at para. 31 Judge St. Pierre quotes Judge Pothecary from 2011 saying, “In itself it is ridiculous as an observation that it should take a year to get a hearing on a traffic ticket.”
[21] If I had accepted the defence submission that the institutional delay here was 15 months and 24 days, I would have had no hesitation in concluding that this case had taken markedly longer than it should have. I would have directing a stay of proceedings.
COVID-19
[22] However, when the defence alleges a Charter violation there is an onus on them to prove that allegation on the balance of probabilities. Further, at para. 83 of Jordan the majority of the court stated, “We expect stays beneath the ceiling to be granted only in clear cases.”
[23] Pursuant to the unreported decision in R. v. Holness [November 2, 2020 Vancouver Registry File No. EA00017417-1] and R. v. Ali Ismail, defence counsel concedes that 3 months and 26 days should be subtracted from the total time elapsed due to the “extraordinary event” that was the Province-wide closure of the courts because of the COVID-19 pandemic. That number was arrived at as traffic court in Abbotsford was closed from March 18, 2020 until July 13, 2020 with hearings being adjourned and new matters not being scheduled.
[24] In addition, Crown counsel submits that even after traffic court re-opened there was a further COVID-related delay in Mr. Taylor’s case. All the hearings that had been scheduled in traffic court between March and July had to be re-scheduled on a priority basis before newer files such as Mr. Taylor’s could have their first hearing date set.
[25] This is indeed exactly what happened.
[26] On that basis I am unable to accurately calculate the true delay in scheduling new hearings due primarily to the COVID-19 pandemic. There is no evidence before me of just how long the rescheduling took, but it’s possible that up to another 4 months could be added to the “exceptional circumstances” delay equation due to prioritizing rescheduled hearings. This could bring the delay in Mr. Taylor’s case down to under 12 months. While that is still a concern for a 30 minute traffic court hearing, ultimately I find that I am unable to conclude that the defence has proven on a balance of probabilities that Mr. Taylor’s s. 11(b) Charter rights were breached.
[27] The defence application is dismissed.
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The Honourable Judge C.D. Sicotte
Provincial Court of British Columbia