The location of an offence is not always an essential component of a charging document, provided that the document provides sufficient specificity as to the location to satisfy the amount of detail required under the relevant legislation. Where the document is sufficiently specific, the court will conclude that the person accused of the alleged offence is not prejudiced by an unfair trial in which they do not know the case they will have to meet.
In a recent BC Supreme Court case, the violation ticket provided sufficient information, although to a less precise degree than the Appellant argued was needed, to pinpoint a unique intersection at which the alleged offence occurred. As such, the Appellant had sufficient notice of the case he needed to meet.
Facts
The Appellant was convicted for failure to stop for a yellow light. The location of the alleged offence recorded by the issuing officer on the violation ticket referred to the intersection of Hastings Street and Bute Street In Vancouver, both West Hastings and East Hastings Streets exist, but not Hastings Street.
At first instance, the Appellant was convicted of the offence. The first instance Judge considered two issues: the sufficiency of the information on the Ticket, and the evidence provided by both the Appellant and the issuing officer.
During trial, the issuing officer applied to amend the Ticket, acknowledging that the location should have been recorded as “West” Hastings Street That application was summarily denied. The issuing officer testified that he saw the light turn yellow when the Appellant was driving on Hastings Street and was approximately 7 to 8 car lengths away from the listed intersection.
The Appellant cross-examined the officer, focusing on whether Bute Street runs perpendicular to Hastings Street and whether it was possible for him to see 7-8 car lengths down West Hastings Street He further put to the issuing officer that he was on “West” Hastings Street, and not Hastings Street, to which the issuing officer responded that there is only one location where Hastings Street and Bute Street intersect.
The first instance Judge concluded that there was sufficient information on the Ticket to render it valid. The Ticket described a “unique pinpoint location in Vancouver” because it described the intersection of Hastings and Bute Street as opposed to merely “Hastings Street.”
In reviewing the evidence provided by both the Appellant and the issuing officer, the first instance Judge held that the Appellant’s evidence did not provide an explanation as to why he could not stop safely. He could not raise reasonable doubt as to whether the elements of the offence were established.
The Appellant appealed the conviction solely on the description of the intersection in the Ticket.
The Crown, in response, provided two arguments:
- The location of the alleged offence is not an essential component of the Ticket. Rather, the Crown must simply prove that that the offence was committed.
- There is only one intersection between Hastings Street and Bute Street in Vancouver. As such, there was no prejudice suffered by the Appellant in his ability to defend himself, because he had sufficient notice of the case he needed to meet. Further, the Crown noted the Appellant had personally received the ticket shortly after the committed offence, and near the listed intersection.
Does a ticket have to accurately state the location of the offence?
In support of its first argument, the Crown cited R. v. Tang, 2005 BCSC 895 (“Tang”) and R. v. Heringa, 2008 BCSC 432.
In Tang, the Supreme Court of British Columbia held that there was no need to amend an information to reflect the correct municipality in which the alleged offence occurred, because the “place of driving was not an essential ingredient” of the offence.
Mr. Tang was acquitted of a charge of driving while disqualified. The information was as follows:
On or about the 30th day of April, 2004 at or near Vancouver, in the Province of British Columbia, did operate a motor vehicle while disqualified from so doing by reason of a prohibition order pursuant to the Criminal Code, prohibiting him from operating a motor vehicle, contrary to s. 259(4) of the Criminal Code.
Mr. Tang was seen by police officers driving around Richmond, and not Vancouver, on the date of the alleged offence. The Crown appealed against the trial judge’s conclusion that Richmond is not “at or near” Vancouver, and also submitted that the trial judge should have applied section 601(4.1) of the Criminal Code.
Section 601(4.1) is as follows:
(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to
(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or
(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.
Mr. Tang’s counsel asked for a dismissal of the charge for the Crown’s failure to prove the allegation in the information on the basis of specifying that the offence occurred “at or near” Vancouver. The Crown submitted that “at or near Vancouver” includes Richmond, which is a municipality next to Vancouver.
The Court held, that unless the place is an essential element of the offence, the application of s. 601(4.1) means no amendment is required.
In response, Mr. Tang submitted that place is an essential element of cases involving vehicular mobility, such as driving offences.
The court ruled that the place of driving was not an essential element because Mr. Tang was prohibited from driving anywhere in the entire Province of British Columbia. As such, there was no need to amend the information.
In this matter, the Crown also cited the case of R. v. Heringa, 2008 BCSC 432, in which the Supreme Court of British Columbia held on appeal that the court may take judicial notice of well-known locations within its jurisdiction. The Court also held that under the Offence Act, which governs tickets, the location of an offence was not a material fact required to be proven by the Crown.
Mr. Heringa was acquitted of an offence contrary to s. 3(2) of the Waste Management Act. The information was as follows:
…between the 1st day of April, 2004 and the 30th day of April, 2004, inclusive, at or near Parksville, in the Province of British Columbia, did in the course of conducting an industry, trade or business, introduce or cause or allow to be introduced into the environment waste, to wit: air contaminants, contrary to Section 3(2) of the Waste Management Act, R.S.B.C. 1996, Chap. 482 as amended. (emphasis added)
During trial, the evidence was that an unauthorized burn had taken place at a stump dump located 2570 Peterson Road. In his Reasons for Judgement, the trial judge accepted the defence’s argument that 2570 Peterson Road had not been proven to be at or near Parksville.
On appeal, the Crown submitted that the trial judge erred in failing to apply the Offence Act, which mirrors s. 601(4.1) of the Criminal Code. Crown Counsel conceded that the alleged offence occurred in Nanoose, a municipality next to Parksville.
The Court found Tang was not distinguishable on the facts. The Waste Management Act applies throughout the Province of British Columbia. The alleged offences would be offences if they were committed anywhere within the Province of British Columbia, such that the place of the offence was “not an essential averment.”
The Court held that given the evidence provided was sufficient to prove that the location of the stump dump occurred on Peterson Road, and took judicial notice of the fact that Nanoose District is adjacent to the City of Parksville.
The Court held that the offence did occur “at or near Parksville”, as noted in the Information, and that the variation between the Information and the evidence provided was not material, pursuant to s. 100(4) of the Offence Act. As such, Mr. Tang was not prejudiced by the fact that the Information indicated that the alleged offence occurred at or near Parksville.
Therefore, since the MVA applies equally throughout British Columbia, the specific place at which a driving offence is alleged to have occurred is not an essential element of an offence. An offence can be established under this section without the Crown being required to prove the exact intersection at which an accused is alleged to have failed to stop for a yellow light or the exact roadway or location where any offence occurred unless that is material.
If the location is not properly stated does the ticket have insufficient information to be valid?
In the recent BC Supreme Court traffic ticket appeal, the Court held that the Appellant did have sufficient notice of the case alleged against him because the location on the Ticket was correct.
The Court ruled that the purpose of including information on a ticket is to ensure that an accused is aware of the case alleged against them so that they are not prejudiced by an unfair trial in which they do not know the case they will have to meet.
East and West Hastings are both part of the same street. Depending on the purpose of listing an address on Hastings Street, it may not be necessary to precisely name the specific half of Hastings Street
The Court affirmed the first instance judge’s finding that Bute Street and Hastings Street only intersect at one location, and not at East Hastings Street The ticket by itself provided sufficient information to pinpoint a unique intersection in Vancouver, such that the Appellant was clearly aware of the location of the offence alleged on the ticket and had sufficient notice of the case alleged against him. The Court continued on to note that the issuing officer personally issued the ticket to the Appellant approximately one block away from the listed intersection, shortly after the offence occurred.
The Court finally concluded that the Appellant’s evidence and questions during cross-examination regarding the intersection and whether Bute Street and Hastings Street intersected perpendicularly or at an angle indicated that he had no confusion in his mind about what he was ticketed for or where the offence occurred as a result of the officer failing to specify ‘West’ Hastings on the ticket.
This argument and defence most likely would be important in the case of speeding tickets, where the road itself is relevant to determining both which speeding offence applies and what speed limit applies on that road. So an incorrect location may be an offence where it is relevant, such as in the case of speeding, but most of the time will not be an issue.
