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--- ab:r._c._bernier_2023_abkb_594 [2026/08/01 20:47] – [E. The late trial language election] victorzhou
+++ ab:r._c._bernier_2023_abkb_594 [2026/08/03 22:28] (current) – victorzhou
@@ Line 284: / Line 284: @@
 [90] I find that this trial could have been completed within 4 weeks if it was conducted in English. Given that at least double the time is required for a trial in French in this case, that is with consecutive interpretation for all witnesses and the accused, and considering that defence counsel also requires interpretation services, I conclude that a reasonable estimate for the length of this trial is between 9 and 10 weeks.
+=== iii. The change of trial language ===
+[91] According to the accused's evidence, in March 2022, the Court proposed the following periods of 3 weeks for trial:
+January 3-20, 2023 \\
+January 30 - February 17, 2023 \\
+February 13 - March 3, 2023 \\
+February 21 - March 10, 2023
+[92] Even though the Crown indicated a preference for period from February 21 to March 10, a letter from the Crown's legal assistant dated March 10, 2022 indicated that the prosecutors could be made available with potential changes to their schedule.
+[93] I find that up until trial dates were fixed, the Court and the Crown were proceeding in a manner which respected Mr. Bernier's s. 11(b) //Charter// rights.
+[94] In the autumn of 2022, it became clear to defence counsel and Crown counsel that Mr. Bernier wanted a trial in French. Even though the Crown consented to the change, Mr. Sockett now argues that the Crown ought to not have done so.
+[95] However, on what basis had the Crown ought to have opposed? If the Crown had opposed the change, the accused would have brought a formal application for a trial in French. On the other hand, in this trial, when Mr. Bernier applied to change his choice again from French to English, I noted that Mr. Bernier has not sufficiently fluent in English to proceed without a translator. A trial cannot proceed without an interpreter if the accused doesn't understand the language spoken by the trial participants. Even if the right to an interpreter under s. 14 is not included in the language rights proscribed by s. 530, in the circumstances of this case, it is highly likely that Mr. Bernier's application to change the trial language from English to French would have been allowed over Crown objections, had they objected. I thus reject the argument that the Crown ought to have opposed the language change.
+[96] On the other hand, even if the Crown had taken steps to ensure that there was sufficient time earlier in the matter, it must be noted that the parties did not apprehend the significant impact of a French-language trial in the circumstances. This impact was first brought up during a hearing held before trial on January 19, 2023 when the court brought up the practical reality of holding a trial in French.
+[97] During this pre-trial hearing, Mr. Genest confirmed Mr. Bernier's preference on mode of interpretation. Mr. Genest was of the view that since the trial would be held in French it would be preferable for the Crown to first ask questions in French and then have the question be translated to English. Then, answers would be translated into French. They relied on **//Tran//** for the proposition that consecutive interpretation is preferable: **//R v Trans//**, 1994 CanLII 56 (SCC), [1994] 2 SCR 951 at pages 989-990. The court allowed the application for consecutive translation. Mr. Sockett argued that the trial could have been held with simultaneous interpretation. Given defence counsel's pre-trial preference, simultaneous interpretation was not one of the options envisaged.
+[98] Additionally, during this pre-trial hearing, it was determined that Mr. Sockett would also require consecutive interpretation into English. Given that Mr. Sockett doesn't speak nor understand French, there was also a need for consecutive interpretation from French into English. This meant that there would be no time savings by having French-language submissions, objections, rulings or testimony. For example, a witness testified in French and this testimony had to be translated into English for Mr. Sockett's benefit. Mr. Sockett also argues that simultaneous interpretation ought to have been used. However, this practically would have labour-intensive given that the questions have been given in French and that most of the witnesses until now have been anglophone. In my view, it would have been complicated and unwise in this context to provide simultaneous interpretation to Mr. Bernier and Mr. Sockett where the official language for the trial was French, where the Crown and the Court were bilingual and where there were multiple questions and objections on the evidence and interpretation of law. There are large potential challenges in a trial for murder. It is important to protect the accused's rights.
+[99] I agree with the Crown that it was not possible to predict the change in language. However, even if the prosecution's view is that the language change was an exception circumstance, they were able to do everything necessary to ensure that the trial could complete under the **//Jordan//** ceiling. In fact, the Court was also available. I highlight that defence counsel was obligated to consult with their client on the issues of language and interpretation before setting trial dates. This comes from s. 530 of the //Criminal Code//, s. 14 of the //Charter// and lawyers' ethical obligations.
+[100] I accept that the parties did not completely understand the impact of consecutive interpretation before the trial began and that they felt the impact during trial.
+[101] The Crown was informed of the possibility of a French-language trial on July 11 but this was not confirmed until October, when the Court contacted the parties to confirm the language of trial. The Crown responded to the court on October 11, indicating that they understood that the trial would be held in French. It wasn't until Mr. Sockett responded indicating that Mr. Genest would be acting as counsel and that he spoke French that the Court was officially notified of the language change.
+[102] After this, the Crown continued to follow up with the defence concerning the admissions. There were also efforts to obtain an additional week for trial as set out above. The defence did not respond before November 24.
+[103] The Crown bears some responsibility for not recognizing that the trial would take significantly longer. This factor, along with the other circumstances, has been considered in my evaluation of the delay in this matter. However, as I will explain, there is no doubt that as soon as the Crown understood that more time was needed, they took stops to add dates to complete trial under the **//Jordan//** ceiling.
+==== F. Steps taken to obtain additional trial dates ====
+[104] As soon as the first trial week was lost, it was clear that additional trial dates were necessary. When witness testimony began, this fact became even clearer.
+[105] The Crown argues that all parties were responsible for adding trial dates but it was the defence's lack of availability that prevented the trial from completing under the **//Jordan//** ceiling. The principal counsel for the accused responds that is unreasonable to blame an experienced attorney who has multiple clients for the delay. He submits that it would be unreasonable to conclude that a lawyer must always be available and that such delay is defence delay. In this case, defence counsel explains that he had multiple trials where was acting as defence counsel and that he tried to reschedule them.
+[106] I agree that not all delay where defence counsel is unavailable results in defence delay. However, in this case, the file shows that as soon as the Court observed that more time would be necessary, it took steps to ensure that I would be available as soon as possible so that the necessary time could be added. In fact, most of my schedule was cleared. Similarly, the Crown indicated that it was available for all the dates offered by the Court. Starting in March 2023, the Crown's conduct was irreproachable. Neither the Court nor the Crown could have done anything else to complete trial as soon as possible.
+[107] The result is that, aside from a few dates were the Court was not available, the dates set to complete trial were mainly a result of Mr. Sockett's extremely limited availability.
+[108] Six additional weeks were set for trial. The Crown created a table titled "[TRANSLATED] April 20, 2023 Table" which shows availability of the Court, the Crown and the defence. This table clearly shows that the trial could have completed by May 5, 2023 by using the first available dates for the prosecution and the court. The table also shows that between March 13, 2023 and March 8, 2024, the Crown and Court were available for 41 weeks whereas the defence was only available for 6 weeks.
+[109] The fact that counsel is not available for some dates does not necessarily constitute defence delay. For example, in **//Hanan//**, changes in the Crown's evidence discovered on the eve of trial risked a possible adjournment. The defence offered to consent to a judge-alone trial, which the Crown refused. If this offer was accepted, the trial would have completed under the 30-month ceiling. After this, the trial judge offered dates for which defence counsel was not available and the subsequent dates which were fixed were over the 30-month ceiling. In **//Hanan//**, the Supreme Court rejected the strict interpretation that all delay after the defence rejects certain dates is defence delay. They wrote:
+<blockquote>
+[9] Like the majority and the dissent below, we reject the Crown's proposed "bright‑line" rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court's understanding of defence delay. Defence delay comprises "delays caused solely or directly by the defence's conduct" or "delays waived by the defence" (**//Jordan//**, at para. 66). Furthermore, "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable" (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (//**R. v. Boulanger**//, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).
+</blockquote>
+[110] In **//Boulanger//**, the Court found that the facts justified an apportionment of the responsibility of the delay between the defence and the Crown, as opposed to entirely to the defence, despite defence counsel's non-availability. In this matter, in November 2018, the parties had asked the judge for a third trial day in addition to the two dates which were already scheduled for January 2019 and the judge denied this request. During the first trial date in January 2019, it became clear that the two days scheduled were insufficient, notably due to a change in the prosecution's strategy. During the discussion to set an additional trial day, the respondent's counsel informed the judge and the prosecution that they would not be available during certain dates in May 2019. The additional trial date was set for September 2019, which the judge insisted on without considering other dates beforehand for which both parties were in fact available. In summary, the judge knew since November 2018 that an additional date would be necessary and, in January 2019, when evaluating potential dates for the continuation for the trial, the Supreme Court found that the trial judge ought to have considered the proximity of the **//Jordan//** ceilings. Another factor that the Supreme Court considered was that the defence's intention to bring a **//Jordan//** application was not disclosed until August 2019. In **//Boulanger//**,  writing for the Court, Kasirer J. concluded that on the facts, it would be "fair and reasonable" to apportion responsibility for this delay and impute half of the delay between June 1, 2019 (the day after defence counsel's non-availability) and September 10, 2019 (the actual date of the continuation).
+[111] In the same vein, depending on the circumstances, a late change of counsel or non-availability of chosen counsel can be imputed to the defence: **//R c Rice//**, 2018 QCCA 198 at paras. 73-75. Vauclair J. wrote on behalf of the five-judge division:
+<blockquote>
+[73] The accused certainly has the right to obtain a certain amount of time so that new counsel can prepare: //**R. c. Guimont**//, 2017 QCCA 1754, para. 50, but judges must determine what is necessary and, depending on the circumstances, may attribute this delay to the defence or find that a discrete event has occurred.
+[74] There will come a time, possibly, when the accused must revaluate potential options if, in light of all the circumstances, counsel is not available within a reasonable period of time. The right to the counsel of one’s choice is not absolute. Counsel must accept the conditions related to the mandate: //**R. c. Racine**//, 2011 QCCA 2025; **//Québec (Procureur général) c. C. (R.)//**, 2003 CanLII 33470 (QC CA), [2003] R.J.Q. 2027, para. 112, 120, which include being available to complete the mandate within a reasonable period of time, because the constitutional right guaranteed by s. 11(b) of the //Charter// has a collective dimension and thus it is wrong to say that it belongs only to the accused.
+[75] Once the trial date has been set, counsel must be available on that date. Given the proactive attitude counsel is asked to adopt, counsel may certainly accept to move the trial date forward but in no case should counsel be strictly limited from engaging in other matters that reduce their availability.
+</blockquote>
+[112] It may not be reasonable to expect that defence counsel be available for 6 consecutive weeks after the dates scheduled for trial. What then would be reasonable? It is certainly not reasonable that Mr. Sockett not be available in 2024 for the last week of trial.
+[113] It must not be forgotten that the week of February 13 was adjourned by request of the defence and that this is defence delay. If this week was used, only 5 additional weeks would have been required.
+[114] Given the unsuccessful efforts in autumn 2022 to obtain additional trial dates, I question whether defence would have even been available for five additional weeks of trial.
+[115] A **//Jordan//** application analysis is not an exact science. I must draw a line and determine a reasonable date that the defence ought to have been available to complete this trial. To determine a reasonable date, I must consider that this case involves an allegation of second-degree murder and that the accused is in detention after an application for interim release which was refused. The assessment of reasonableness considers not only the accused's point of view and his choice of lawyer, but also the point of view of society, the victims and their families.
+===== VI. Conclusion =====
+[116] The indictment was filed on September 9, 2020. According to the current schedule, the trial will complete on March 8, 2024, 42 months after the filing of the indictment.
+[117] The defence explicitly waives the delay between September 27 to December 9, 2021 inclusive, which is 74 days for the change in counsel for the accused. Thus, 74 days are deducted from the total delay of 42 months, giving a delay of around 39.5 months.
+[118] In my view, it is clear that between July 11 and November 24, 2024, defence counsel were not concerned with protecting Mr. Bernier's s. 11(b) rights.
+[119] The delay from the adjournment of the week of February 13, 2023 is imputable to the defence.
+[120] The trial language was changed at a late stage of the matter. This late language election is another example of the defence's complacency. Neither the defence nor the Crown advanced a clear view on the impact of this election. After the change in trial language, the Crown continued to try and obtain other dates with little cooperation from the defence.
+[121] When it was clear that the trial needed to be extended, the Crown and the Court did everything in their power to obtain additional dates. Based only on the Crown and Court's availability, this trial could have been completed by mid-May 2023, within the delay set by **//Jordan//**. Aside from certain dates where the Court was not available, the dates for this trial depended entirely on the defence's availability.
+[122] There is no simple mathematical subtraction for the months that constitute defence-waived delay. For example, I do not think that the period between July 11 to November 24 leads to a direction deduction of 4 months, even if defence counsel was not concerned with protecting the accused's s. 11(b) //Charter// rights which in my view constitutes an implicit waiver of delay. Similarly, I do not think that it is reasonable to expect that defence counsel be available for 5 to 6 consecutive weeks following the initial dates for trial.
+[123] //**Jordan**// provides an analysis framework but this framework is not an exact science. When I consider the entirety of the factors in this case, I conclude that they show complacency on the part of the defence. This complacency is demonstrated by, among other facts, their failure to respond to Crown communications, the late language election and the February 13 adjournment. I attribute three months as defence-waived delay to their complacency. To these three months, I add 74 days of explicit waiver caused by the change of defence counsel. The presumed //**Jordan**// ceiling is thus extended by 5.5 months due to defence-waived delay. In other words, this trial ought to have completed by August 24, 2023.
+[124] Having concluded that the //**Jordan**// deadline is August 24, 2023, I now consider whether the defence ought to have been available to complete this trial within this time and whether their non-availability after August 24 constitutes additional waived delay. Between March 13, 2023 and August 24, 2023, there were 15 weeks where the Crown and the court were available to continue trial. In my view, it would be reasonable for Mr. Sockett to free up six weeks within this time. It is important to remember that this is a second-degree murder case and that the accused is in detention. It is therefore reasonable that Mr. Sockett ought to have been available to complete trial by August 24, 2023 despite his busy schedule. All of the delay after August 24 is thus imputable to the defence.
+[125] For the reasons set out above, I reject the accused's application for a stay of procedures.
+Heard on the 7th day of July, 25th day of August and 27th day of September 27, 2023. \\
+Writing submissions received on the 18th day and 23rd day of August, 2023. \\
+**Dated** at the City of Edmonton, Alberta this 20th day of October, 2023.
+%%____________%% \\
+**S. Leonard** \\
+**J.C.K.B.A.**
+**Appearances:**
+Mr. Aaron Pegg and Mr. Brett Grierson \\
+for the prosecution/respondent
+Mr. Sockett and Mr. Genest \\
+for the accused/applicant Mario Bernier
+**Appendix - Timeline of file**
+[Omitted from translation]