Differences

This shows you the differences between two versions of the page.

--- ab:r._c._bernier_2023_abkb_594 [2026/08/03 21:12] – victorzhou
+++ ab:r._c._bernier_2023_abkb_594 [2026/08/03 22:28] (current) – victorzhou
@@ Line 336: / Line 336: @@
 </blockquote>
-[110]
+[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]