R. v. SERAJI, 2020 BCSC 1417

Crown has authority to appeal lower traffic court’s decision, but the court has no authority to decide what prosecution the crown will proceed on.

The Crown appealed a decision made by the Provincial Court of British Columbia on a matter of traffic violation that the respondent here, Mr Seraji was acquitted from the charge of excessive speeding and was convicted on offence of speeding simpliciter. Respondent was charged for excessive speeding and traffic ticket violation, however, after his trial proceeding the justice found him not guilty of excessive speeding and convicted respondent for a lesser charge of speeding. The crown found the decision unfair and appealed to BCSC.

As it is uncommon for the crown to appeal in matter of decisions made by lower courts, the jurisdictional issue was the main issue to grant this appeal. The justice analysed and examined necessary provision related to traffic violation and tickets, given under Offence Act and came to the conclusion that the appellant (crown) has the authority to appeal any decision, if the matter of acquittal falls in the scope of s. 102 of the Offence Act. Another issue raised was whether the elements of evidences presented in provincial court’s trial establish that the respondent was driving with excessive speeding.

On the other hand, the respondent submitted that the appeal should not be proceeded with, firstly, because the offence is not in the nature of criminality, but in the nature of regulatory offence under Motor Vehicle Act. Secondly, the crown counsel policy manual guidelines states that an appeal under an acquittal can only get approved if it fulfils any three conditions, 1) question of law and fact or decision is not based or proved by sufficient evidence, 2) decision will not be the same if the error never happened, 3) public interest. In this case, respondent stated that the three conditions mentioned above have not been met. He also added to his submission that he had already been through a trial and affected by it, financially, and was not in a state for another prosecution of the same offence.

The court of justice analysed and came to conclusion that the decision made by the lower court erred in ordering acquittal and for convicting the respondent only for a lesser charge, and the guilt for lower charge was a result of acquittal of excessive speed driving charge. The court also noted that the elements in the evidences of trial prove the requirements of offence of excessive speeding. However, it made an observation that the Court of Justice has no authority to direct the prosecution for its inefficient and ineffective proving of the charge. If the prosecution fails to prove the charge then the court has to dismiss the charges against the accused.

So here, the bench ordered for fresh trial and scratched the previous conviction and acquittal. It also stated that court has no authority to decide the prosecution charge proceeding by the crown. Even after the court acknowledged the fact that, the respondent had financially suffered and invested his time during his original trial, but it cannot make the decision whether the crown should proceed with the charge of excessive speeding or not. This decision is not for the court but only for the crown to make.