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====== R c Bernier, 2023 ABKB 594 ======

**Court of King's Bench of Alberta**

**Citation: R c Bernier, 2023 ABKB 594**

**Date:** 20231020 \\
**Docket no.:** 200899813Q1 \\
**Registry:** Edmonton

Between:

**His Majesty the King** \\
Prosecution/Respondent

v.

**Mario Bernier** \\
Accused/Applicant

----

**Reasons for Decision on s.11(b) //Charter// application** \\
**of the** \\
**Honourable Madam Justice S. Leonard**

----

===== I. Introduction =====

[1] Mr. Bernier is charged with murder. The indictment was filed on September 9, 2020. According to the current schedule, the trial is scheduled to complete on March 8, 2024, 42 months after the filing of the indictment. A chronology of events is appended.

[2] The accused Mr. Bernier alleges that his right to be tried within a reasonable time pursuant to s. 11(b) of the //Canadian Charter of Rights and Freedoms// has been violated. He brings a **//Jordan//** application for a stay of proceedings: **//R v. Jordan//**, 2016 SCC 27. The Crown alleges that even if the total delay exceeds the 30 month limit established in **//Jordan//**, after subtracting defence-attributable, the total delay falls below 30 months and becomes reasonable. In the alternative, if the Court finds that the delay is above the 30 month limit, exceptional circumstances justify the breach.

===== II. Positions of the parties =====

==== A. Position of the accused ====

[3] The accused is of the view that the right to be tried within a reasonable time has been violated and that the delay is attributable to poor planning by the Crown and the Court. The accused submits that there was insufficient time allocated for the trial and that no one accurately estimated the  time needed for trial. The accused claims that the Crown was unable to decide how many witnesses it needed. This failure occurred well before the language change.

[4] Defence counsel highlight that Mr. Bernier has a right to a trial in French without a compromise in his right to be tried in a reasonable time. The accused also submits that he should not be penalized for his choice to retain senior and experienced counsel whose availability is limited. 

==== B. Position of the Crown ====

[5] The Crown's position is that after subtracting defence delay, the trial would have been complete within the 30 month limit. In the alternative, there are exceptional circumstances in this case which justify breaching the 30 month limit.

[6] The Crown submits that a series of exceptional events have made this case complex. In particular, these events consist of:

  * (a) the late filing of a s. 8 //Charter// application;
  * (b) the late changes to the agreed statement of facts;
  * %%(c)%% the adjournment of the week of February 13, 2023;
  * (d) the late change of trial language;
  * (e) the **//O'Connor//** application; and
  * (f) Crown counsel's illness during the week of February 21, 2023.

[7] I am of the view that the **//O'Connor//** application and the prosecution's illness did not impact the delay in this case. There was an extra day allocated for the hearing of the **//O'Connor//** application which was settled by consent. Even though Crown counsel was ill for a week, they made appearances remotely by Webex and the trial continued. Therefore, I will not consider these events in these reasons.

===== III. Issues =====

[8] In this case, the questions in dispute are as follows:

  - Was there defence-waived delay?
  - If the limit was breached, were there exceptional circumstances which rebut the presumption of unreasonable delay?


===== IV. Legal principles =====

[9] In **//Jordan//**, the majority of the Supreme Court of Canada created a ceiling for trials over which the delay is presumed unreasonable. The judgment in **//Jordan//**, rendered over 7 years ago, sent a clear message that the culture of complacency within the legal system had to end and that going forward, the right of the accused to be tried within a reasonable time ought to be taken seriously: **//Jordan//** at para. 40. As highlighted by the majority of the Court, the right guaranteed by s. 11(b) of the //Canadian Charter of Rights and Freedoms// is of utmost importance in the criminal justice system since unreasonable delay not only represents a denial of justice for the accused, but also for society, victims and their families: **//Jordan//** at para. 19. It is therefore important that all participants in the criminal justice system move matters forward and collaborate to ensure that justice is administered promptly: **//Jordan//** at para. 5. In other words, both the Court and counsel for both sides must adopt an proactive approach in the administration of criminal justice: **//R. v. Cody//**, 2017 SCC 31 at paras. 36-39.

[10] In cases where the Crown proceeds in superior court, the ceiling is 30 months between the charge and the anticipated completion of trial. If this delay exceeds 30 months (after deducting defence delay), the delay is presumed unreasonable and it is incumbent on the Crown to establish exceptional circumstances which debut the presumption: **//Jordan//**, at para. 47. Exceptional circumstances fall into two categories: discrete exceptional events and complexity of the case. Discrete exceptional events are unforeseeable or unavoidable which could not have been expected and which have no useful mitigation which would bring the delay below the applicable ceiling: **//Jordan//** at paras. 73 and 74.

[11] Defence delay can be waived, explicitly or implicitly, or caused solely by the conduct of the defence: **//Jordan//** at paras. 61 and 63. The second category of defence delay is about dilatory tactics or circumstances where the  Court and Crown are ready to proceed, but the defence is not: **//Jordan//** at paras. 63 and 64; **//R. v. Cody//**, 2017 SCC 31 at para. 30. There is no exact science or absolute rule for determining defence delay; the Court must take all pertinent circumstances into account: **//Cody//** at para. 31, and more recently see **//R. v. Hanan//**, 2023 SCC 12 and **//R. v. Boulanger//**, 2022 SCC 2. Time needed to respond to the charges is not attributable to the defence because the accused has a right to review disclosure to make full answer and defence: **//Jordan//** at para. 65; **//Cody//** at para. 29.

[12] In summary, to determine whether a portion of the entirety of a delay is defence delay, it is necessary to consider the circumstances and facts pertinent in the case.

===== V. Analysis =====
==== A. Context ====

[13] In the case at bar, I must decide whether the delay was reasonable, but there are other rights and circumstances which are part of the context which are necessary to understand why this case took longer than expected by the Crown, the accused and the Court.

[14] In particular, the accused requested a trial in French late in the case. The Crown did not oppose this request and the Court made the necessary arrangements. The Court administration ensured that a bilingual judge, a bilingual reporter and interpreter were available for the dates set for trial. Another feature of this case is that the accused has two lawyers: his main lawyer who is not bilingual and a second lawyer who is bilingual. The main lawyer has exercised his right to an interpreter pursuant to s. 530.1. The right to an interpreter pursuant to s. 14 of the //Charter// is also in play: the witnesses at trial will mainly anglophones who will be asked questions in French; Mr. Bernier has elected to a French trial and also has a right to interpretation for witnesses who testify in English.

[15] With these observations in mind, the next step in this **//Jordan//** application is to calculate the total delay while considering, if applicable, delay attributable solely to the defence.

==== B. Explicit defence waivers ====

[16] In the present matter, the accused explicitly waives the period between September 27 to December 9, 2021, inclusive, which is 74 days, for the accused's change in lawyer. As a consequence, 74 days should be deducted from the total delay of 42 months, leaving a period of 39.5 months.

==== C. Delay caused by the Crown ====

[17] In this case, the evidence shows that the Crown's failure to gather witnesses prevented a preliminary inquiry from taking place in December 2021. However, as I will explain, this did not have a major impact on the total delay.

[18] A preliminary inquiry was scheduled for December 10, 2021. On October 26, 2021, Mr. Bernier's counsel withdrew from the case. Mr. Bernier appeared before the Court and did not know whether he would have a lawyer for the preliminary inquiry on December 10. On November 25, Mr. Bernier's new lawyer, Mr. Gill, entered his appearance. Mr. Gill was not aware of the preliminary inquiry on December 10 and had not received disclosure. On December 2, Mr. Gill indicated that he wished to proceed with a preliminary inquiry. At this point, the Crown did not have enough time to prepare for the preliminary inquiry and it was adjourned to January 13, 2022. On January 13, Mr. Bernier withdrew his request for a preliminary inquiry and the matter was further adjourned to a hearing on Februrary 22, 2022 (the hearing actually took place on February 25).

[19] Mr. Sockett's position is that this delay is Crown delay. I acknowledge that this delay is not attributable to Mr. Bernier.

[20] The time between December 10 and January 13 was lost. Even though the December 10 adjournment was caused by the Crown's unpreparedness, the request for a preliminary inquiry was eventually withdrawn, which could have occurred sooner. In my view, it would not be reasonable to attribute delay to the Crown for its failure to produce witnesses for a preliminary inquiry where there was a recent change in counsel and in consideration that the preliminary inquiry was subsequently cancelled. Instead, these events are an example of the last-minute choices made in this matter.

==== D. Implicit defence waivers of delay ====

=== i. Was sufficient time allocated for trial? ===

[21] The trial in this matter was initially scheduled for a period of three weeks between February 21 and March 10, 2023, for a total for 14 days (February 20 being a holiday). According to Mr. Bernier's affidavit and Mr. Sockett's oral submissions, it was the Crown who gave the three-week estimate. This argument implicitly criticizes the Crown's estimate. It is therefore necessary to examine the measures taken by the parties to ensure that the trial could complete on time.

[22] The evidence shows that during the case management conference on July 11, 2022, the Crown prosecutors indicated in Form CC7 that 14 days would not be sufficient to complete the trial. In the case management conference report, Little J. wrote:

<blockquote>
Counsel though are concerned that even 14 days may not be sufficient time if Mr. Sockett is unable to persuade his client to make certain admissions. Ms. Armsworthy, would you please contact counsel to let them know whether a week can be added to the scheduled beginning or ending of the trial.
</blockquote>

[23] It is difficult to determine with exactitude whether an extra week would have been sufficient in the context where the trial would taken place in English. In his pleadings, Mr. Sockett described an anecdotal situation about a matter involving similar accusations where three weeks were sufficient for trial. According to Mr. Sockett, some of the witnesses who testified in the other matter also testified in this matter, including an expert witness on sniffer dogs, an expert witness on firearms and an expert witness on DNA analysis. Mr. Sockett did not include the s. 8 //Charter// application in his description of this matter and did not indicate whether the identity of the deceased was admitted.

[24] Considering that concerns raised at the case management conference whether three weeks would be sufficient without admissions from the accused and the anecdotal scenario described by Mr. Sockett, I find that four weeks would have been an appropriate estimate for an English-language trial in this matter and that it was necessary to schedule another week for trial.

[25] However, the trial for this matter is not in English. The language change was raised for the first time during the case management conference on July 11, 2022. Little J. wrote:

<blockquote>
Further, Mr. Bernier’s first language is French, and he may be seeking a French language trial. If so, Mr. Sockett will be making that application in September 2022. Mr. Sockett and Mr. Grierson/Ms. Hankinson will have further discussions on that point before July 31, 2022.
</blockquote>

[26] The case management conference report shows that as July 11, 2022, the parties were concerned that the trial would not complete within three weeks without admissions from the accused. The report suggests that there was an issue, even without the language change. Indeed, after July 11, the trial language remained uncertain. Once the parties were aware that there were concerns that the trial would not complete on time without defence admissions and that it was possible that the trial would take place in French, the two sides were obligated to take measures to ensure that the allocated trial time was sufficient.

=== ii. Measures taken after July 11, 2022 to obtain more time ===

[27] On August 11, the Crown prosecutor sent a letter to the defence including a list of suggested admissions. The letter also indicated that the Crown would not oppose a trial in French. In response, the defence wrote "On holidays in pei, it can wait."

[28] Except than this message, the defence did not respond to the August 11 letter. In oral submissions, Mr. Sockett explained that the Crown wanted everything, "including the kitchen sink." He confessed to not being receptive - in English, he expressed himself in this way: "I got my back up."

[29] On September 2, 2022, the Crown followed up with defence counsel. In this letter, the Crown confirmed that the trial would be conducted in French and asked whether Mr. Sockett would be counsel for the accused at trial. The letter also asked for the accused's position on the admissions that the Crown sought to obtain in its August 11 letter.

[30] On October 3, 2022, the Criminal Trial Coordinator of the Court of King's Bench sent a letter to the parties asking whether the trial would be in English or French. Crown counsel responded on October 11 by letter indicating that he was not sure whether the defence had responded but he believed that the trial would be in French [English version: I am not sure if Defence has responded, but our understanding is that this will be a French language trial.] Crown counsel also indicated that he was waiting for a response from the defence on who would conduct the trial in French and the accused's position on the suggested admissions.

[31] In response, Mr. Sockett responded indicating that Mr. Genest would be counsel for the accused and that he spoke French fluently. Mr. Sockett indicated that he and Mr. Genest would respond to the suggested admissions at an opportune time.

[32] On October 18, 2022, Crown counsel asked for a supplemental case management conference indicating that there were urgent circumstances including that there was a new defence lawyer and that the trial would now be conducted in French. They wrote "Need to reach understanding of trial issues and perhaps request additional trial time."

[33] On October 24, Crown counsel sent a draft statement of agreed facts to Mr. Sockett.

[34] A supplemental case management conference took place on October 25, 2022. In his report, Little J. noted that the Crown had sent Mr. Sockett a draft statement of agreed facts which could reduce the number of days required for trial. Mr. Sockett also indicated that that he would meet with his client to discuss the draft.

[35] In the report, Little J. also noted that the parties required approximately an additional week for trial. In his submissions, Mr. Sockett admitted that at this point, the parties were aware that it would be impossible to complete trial within 3 weeks whether it be in English or French.

[36] On October 27, Crown counsel sent an amended draft statement of agreed facts. In his submissions, Mr. Sockett admitted that he was not in a hurry to come to an agreement. In his view, agreed statements of fact were things to be finalized on the eve of trial or even during the trial.

[37] On October 28, the Coordinator added a week from March 13 to March 17, 2023 to the trial. In response, Mr. Sockett indicated that neither he nor Mr. Genest were available during that week.

[38] On November 1, the Crown's legal assistant followed up with the Coordinator asking for dates that they could schedule with the defence. In response, the Coordinator observed that the defence was not available for March 13 to 17. If the parties wanted alternative dates, they had to appear in Criminal Appearance Court.

[39] The Crown followed up on November 1 confirming whether Mr. Genest would be available during the March 13 to 17 week. Mr. Sockett responded that neither him nor Mr. Genest would be available during the week in question.

[40] Crown counsel followed up again on November 7 with defence counsel asking for an answer. Not having received an answer from defence counsel, on November 14, the Crown asked that the file be brought before the Criminal Appearance Court.

[41] On November 25, during the hearing at Criminal Appearance Court, the parties indicated that they would contact Henderson J. to try and obtain dates for preliminary applications. The March 13 to 17 dates were cancelled at the hearing.

[42] On November 25, Crown counsel sent a letter to Henderson J. asking that a case management judge be appointed to the case and that 5 days be added to the trial. That day, defence counsel provided several dates to the Crown from February 3, 2023 to February 2024. On November 28, the Coordinator asked whether they could start trial on February 13. The Crown indicated that they would be available. On December 1, Mr. Sockett indicated that Mr. Genest would be available. In the same message, Mr. Sockett wrote that he would consider the suggested admissions. He also indicated that he would consider his position regarding the accused's statements.

[43] The correspondence between July 11 and November 24 show that the Crown contacted defence counsel multiple times to obtain trial dates and work on the agreed statement of facts. Defence counsel did not seem to want to answer, thinking that the answers could wait. Even after the question of trial language was raised, defence counsel did not do anything to advance the matter. The correspondence establishes that the Crown continued to raise the issue of trial language, indicating to the Court on October 11 that they understood that the trial would be conducted in French.

[44] Having received no response, the Crown finally brought the case before the Criminal Appearances Court. It is from this moment that defence counsel began to engage in the matter.

=== iii. List of witnesses ===

[45] The accused argues that the Crown's list of witnesses has frequently changed up until trial and that this behaviour demonstrates a lack of certainty on the part of the Crown in this matter. The Crown had a list of 38 witnesses at the July 11, 2022 case management conference. As of the start of trial, there are now 51 scheduled witnesses. The accused submits that these changes in the number of witnesses raise questions concerning the manner in which the Crown has proceeded in this matter.

[46] For the reasons that follow, I find that the changes in the list of Crown witnesses are the direct result of the conduct of the accused's counsel.

== a) The effect of the late s. 8 application ==

[47] The Crown argues that the late filing of an s. 8 //Charter// application required additional witnesses and made this matter more complex. On December 9, 2022, during a case management conference with Henderson J., the accused's counsel advised the Crown that they intended to file a s. 8 //Charter// application. Henderson J. set January 5 as the deadline to formally file such an application. The application was served on the Crown on January 5 and it was formally filed in February due to court delay. The accused argues that the notice on December 9 was sufficient for the Crown to adapt and change how it proceeded in this matter.

[48] Mr. Bernier's affidavit includes a list of 49 witnesses which was provided by the Crown on January 6, 2023. This document includes 14 witnesses for the s. 8 application. Even though 14 witnesses were included in this January 6 list, in its oral submissions, the Crown clarified that 11 witnesses testified in relation to the s. 8 application. In a letter dated January 6, 2023, the Crown indicated that further witnesses would be required if the accused did not sign the agreed statement of facts.

== b) Agreement on the agreed statement of facts ==

[49] Even though the s. 8 application impacted the scope of the testimony for 11 witnesses, the accused highlights that there was an agreement on the agreed statement of facts such that the voluntary nature of certain statements were no longer in question which would have streamlined the trial.

[50] According to the January 6 witness list, 9 witnesses were required to determine whether Mr. Bernier's statements were voluntary. These 9 witnesses were not included on the witness list which was provided to the Court at the start of trial.

[51] Additionally, in their oral submissions, the accused's counsel indicated that there were supplementary agreements which further reduced the witness list by at least 15 witnesses, including the forensic pathologist, the toxicologist and the DNA analysis expert. I will revisit this submission later in this decision.

== c) The withdrawn defence admissions regarding continuity of evidence and identity of the deceased ==

[52] On January 23, 2023, Mr. Sockett indicated that Mr. Genest would visit the accused for his signature on the agreed statement of facts. On January 24, Mr. Genest indicated that the accused signed the agreed statement of facts.

[53] On January 31, 2023, the accused withdrew certain admissions in the agreed statement of facts regarding continuity of evidence and the identity of the deceased.

[54] The Crown submits that the withdrawn admissions regarding the continuity of evidence which occurred on February 10, 2023 required that it prove the chain of custody of multiple exhibits which expanded the scope of testimony for 14 witnesses. The Crown admits that most of these witnesses are required for testimony beyond the scope of continuity.

[55] Certain witnesses who were required to prove the deceased's identity were included in the January 6 list of witnesses. Two members of the deceased's family and the constable who took DNA samples from the deceased were added. I am unable to determine precisely how the withdrawal of these admissions affected the length of the trial.

== d) "Useless" witnesses ==

[56] The accused submits that the Crown has included useless witnesses which has wasted time. Specifically, the witnesses under question are the drone operator who took photos of the fire, the forensic pathologist who conducted the deceased's autopsy, the toxicologist and the DNA analysis expert. The accused submits that the Crown had these witnesses testify even though their testimony was not contested.

[57] The Crown asked around 12 questions of the drone operator. There was no cross-examination. According to my notes, this testimony took less than 15 minutes.

[58] The Crown spent 35 minutes on the toxicologist's testimony. Defence counsel asked a single question on cross-examination to confirm that the toxicologist's testimony was included in their report.

[59] Three hours was spent on the forensic pathologist's testimony because he had to travel to the courtroom after having difficulties with Webex. Defence counsel asked around 10 questions to confirm that the forensic pathologist could not determine the deceased's cause of death.

[60] Finally, regarding the DNA analysis expert, defence counsel maintain that this witness was not necessary. However, the identity of the deceased was not admitted. The DNA analysis expert testified for just over 2 hours. Mr. Sockett asked a series of questions on the reliability of the DNA analysis results. Mr. Sockett also explored other analysts' participation in the use of certain software. From the Court's point of view and at this stage, the DNA analysis expert's testimony seemed to have been necessary.

[61] The Crown is not held to a standard of perfect in how it presents its case. It is possible that certain witnesses were not necessary. Additionally, I note that the time spent on these witnesses was barely comparable to the time spent for the s. 8 //voir dire// raised shortly before the start of trial.

== e) Conclusion on the witness list ==

[62] It is clear that important additions were made to the witness list following notice of the //Charter// application. The accused's position is that the prosecution had ample time to prepare for these additional witnesses. This argument fails to consider the additional trial time required for this late application. It is difficult to estimate precisely how much extra trial time was required for the s. 8 //Charter// issues because this matter is proceeding as a blended voir dire. There are 14 witnesses testifying in relation to the s. 8 issue. Some of these witnesses would have been called without the s. 8 application. The testimony of three of these witnesses, Mr. Bureau, Mr. Pawlowski and Mr. Hill have taken 2 weeks.

[63] In the Court of King's Bench of Alberta, Rule 14 of the //Criminal Procedure Rules// proscribe a seven-day notice period before a case management conference or a 60 day notice period before trial (whichever is first) for applications for remedies based on an alleged violation of an accused's rights or freedoms guaranteed by the //Charter//. This notice period assures that such applications will be properly considered at trial. The fact that Henderson J. allowed the non-compliance with the rule does not change the fact that the application ought to have been brought 6 months beforehand.

[64] I acknowledge that the accused made important admissions regarding the accused's statements. However, any reduction in the number of witnesses from these admissions were lost following notice of the s. 8 //Charter// application. Additionally, even if I accept that the Crown called certain "useless" or non-essential witnesses, there where occasions where adjournments were granted since defence counsel did not have all necessary documents. No party was perfect in regards to the efficient use of court time, but in any trial, minor delays are expected.

[65] I conclude that the prosecution modified the witness list as a result of late actions taken by the defence.

=== iv. The adjournment of the week of February 13, 2023 ===

[66] On November 28, 2022, the Criminal Trial Coordinator asked the parties whether they were ready to proceed to trial on February 13, 2023. The Crown indicated that they were available. On December 1, Mr. Sockett indicated that Mr. Genest would be available. The trial began on the morning of February 13. Mr. Genest asked for an adjournment so that Mr. Bernier and Mr. Sockett could discuss the agreed statement of facts. Despite best efforts to ensure that Mr. Bernier could speak with Mr. Sockett, an adjournment was eventually granted until the next day.

[67] On February 14, the trial recommenced. The Crown immediately raised the issue of whether the trial could continue in the absence of Mr. Sockett, given that Mr. Sockett was Mr. Bernier's chosen lawyer.

[68] The Court asked for Mr. Genest's position. In response, Mr. Genest explained that Mr. Sockett was not available during the week of February 13, that Mr. Genest was present for his bilingualism, that Mr. Genest and Mr. Sockett worked together and Mr. Genest added that "[TRANSLATED] it is the first time that I am meeting Mr. Bernier." Mr. Genest stated that Mr. Bernier wanted Mr. Sockett to be present at trial. Mr. Genest stated that he agreed with the Crown that an adjournment until February 21 was necessary to ensure Mr. Sockett's presence.

[69] Before granting the adjournment, the court inquired as to whether sufficient time was available for trial. The Crown indicated that four weeks were needed for trial and that there were 19 witnesses scheduled for the week of February 13. The court adjourned briefly and asked counsel to confirm whether they would be available for a continuation of the trial during the week of March 13.

[70] When the hearing resumed, Mr. Sockett appeared by telephone and indicated that he would not be available during the week of March 13. He also indicated that the week of February 13 was allocated for the voir dire on the accused's statements and considering the parties' agreements on this subject, the week was no longer necessary. Mr. Sockett assured the court that the trial could be completed in the three remaining weeks.

[71] In response, the Crown indicated that the three-week estimate had been for a trial in English and that other matters were also set to be discussed that week.

[72] In this **//Jordan//** application, Mr. Sockett first argues that it was the Crown who brought up the issue of an adjournment and also adds that the trial could have continued that week. In doing so, Mr. Sockett suggests that the adjournment only occurred because the Crown raised the issue. I entirely reject this argument. Even though the Crown raised the issue, it is evident that Mr. Bernier was not ready to proceed without Mr. Sockett.

[73] Second, Mr. Sockett suggests that Mr. Genest was mistaken when he stated that he and Mr. Bernier had never met beforehand. In his oral submissions (in Mr. Genest's absence), Mr. Sockett explained that Mr. Genest and Mr. Bernier met in the detention centre when Mr. Genest had the agreed statement of facts signed. Mr. Sockett also implied that Mr. Genest made appearances for Mr. Bernier at Criminal Appearances Court. In my view, the primary consideration in determining the reason for the February adjournment is the what happened in court after Mr. Genest stated that he was meeting Mr. Bernier "[TRANSLATION] for the first time". In face of such a declaration, the court had no choice but to adjourn the matter.

[74] Finally, Mr. Sockett states that the week of February 13 was dedicated to determining whether the accused's statements were voluntary. Given that there were agreements between counsel on this subject, that week was no longer necessary.

[75] For the reasons set out above, I find that the late notice of the s. 8 //Charter// application necessitated additional witnesses who were otherwise not necessary and expanded the scope of other witnesses' testimony. Since the start of trial, it was evident that additional time would be necessary. The Crown had witnesses ready to testify. This list was sent to the defence in compliance with the schedule. There was no way to know that Mr. Genest could only represent Mr. Bernier in a limited manner. After advising the Court and the Crown that Mr. Genest was available, it was reasonable to use the week for other issues. The delay incurred by the adjournment in the first week of trial is imputable to the defence.

=== v. Conclusion: waiver and exceptional circumstances ===

[76] Between July 11 and November 24, 2022, the defence did not take any steps to schedule another week for trial. Additionally, defence counsel did not respond to communications regarding possible admissions. They were neither proactive nor reactive. From //**Cody**// at para. 35:

<blockquote>
//All// justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the //Charter//. [Italics in original]
</blockquote>

[77] Even though the defence had no obligation to make any admissions, they were obligated to answer the Crown's questions and take measures necessary to allocated the time necessary for trial, especially since the ability to complete trial within the allocated time was in question. There was effectively an absence of useful effort on the part of the defence to advance the trial: **//R. v. Yusuf//**, 2021 SCC 2 at para. 5.

[78] On November 28, the Coordinator asked the parties whether they could start trial on February 13. Mr. Sockett indicated that Mr. Genest would be available. Even though the agreed to an additional week in February, in the end, the hearing was adjourned. In my view, and for the reasons set out above, this adjournment was caused directly by the conduct of the defence.

[79] An important change to the trial occurred on December 9, 2022, when the defence gave verbal notice of a //Charter// application. Aside from agreeing to an additional week for trial, this application was the first real step taken by the defence. The defence continued with these changes until January 31 when they withdrew certain admissions.

[80] Considering that defence counsel failed to take measures to ensure that there would be sufficient trial time, especially when defence counsel failed to respond to Crown letters, and Mr. Sockett's view that there was sufficient trial time even after having lost a week, the defence counsel's actions strongly suggest that they were not concerned with delay. One could conclude that defence counsel adopted the complacent attitude denounced in **//Jordan//**. Defence counsel must also takes steps to protect the conferred by s. 11(b) and it is now clear this responsibility is shared by all justice system participants: see **//R v David//**, 2018 ABQB 982 at para. 25. I conclude that defence counsel were not concerned with protecting Mr. Bernier's s. 11(b) rights, which I find constitutes an implicit defence waiver of these rights.

==== E. The late trial language election ====

=== i. Change of trial language and s. 530 ===

[81] This application for a stay of proceedings for delay was brought because the trial could not be completed within the initially-scheduled time. In my view, the change of trial language was the most important factor affecting the progression of the matter. The Crown argues that if the proceedings have taken longer than 30 months as prescribed  by **//Jordan//**, the trial language change constitutes a exceptional circumstances which could not have been foreseen.

[82] The accused's position is that an accused who elects to a French-language trial does not waive their s. 11(b) //Charter// rights and they should have to do so. The argue that given the **//Jordan//** ceilings, the Crown ought to have opposed the French language election.

[83] There is no doubt that trials with consecutive interpretation can take twice as long as trial without interpretation since, in the former case, the interpreter must repeat every word. Therefore, if there is one hour of anticipated testimony from a witness, there needs to be another hour allocated for interpretation.

[84] In reality, trials with consecutive interpretation can exceed this estimate. First, there must be a voir dire with each interpreter to test their qualifications. For longer trials, there could be multiple interpreters. Second, it could be necessary to discuss the accuracy of specific translations.  This scenario is more likely where the judge or lawyer is bilingual and can verify the correctness of the translation. Finally, every speaker has to speak slowly and speak in short sentences so that the interpreters can repeat everything that is said. Despite instructions to use short sentences, witnesses can have difficulty adapting to the presence of an interpreter.

[85] It is not contested that Mr. Bernier was informed to his right to a French-language trial. The evidence shows that pursuant to s. 530(3) of the //Criminal Code//, Mr. Bernier was informed of his right to a trial in French on September 14, 2020 at his first appearance before a Justice of the Peace.

[86] S. 530 of the //Criminal Code// requires that an accused apply for a trial in one of Canada's two official languages before trial dates are set. The right to pick a trial language is absolute if the accused makes their election before trial dates are set. Given the constraints in Alberta, a timely language elections guarantees the availability of a bilingual judge, clerk and prosecutor. It also allows for the scheduling of sufficient time for trial.

[87] The right to a trial in an official language belongs to an accused and not to their lawyer. A lawyer has an ethical obligation to inform their client of their rights as soon as possible. In general, only defence counsel can discuss the accused's choice when trial dates are set. Unless there are reasons to doubt the accused's capacity to understand the trial language, the prosecution has a right to rely on the accused's language choice as communicated by defence counsel.

[88] The **//Jordan//** principles apply whether trial proceeds in English, in French or in both official languages: see also **//R c Vaillancourt//**, 2019 ABQB 859 in another context. The principles apply even if additional time is required for trial. To clarify, if the accused asks for a French-language trial with interpretation before trial dates are set, the Court and the Crown must plan for a longer trial. As I will explain in the paragraphs that follow, the Court and the Crown would have been available to complete trial within 30 months if there was no late trial language election.

=== ii. Trial duration estimate ===

[89] Excluding the dates for the **//Jordan//** application, 9 weeks were allocated for this trial, as follows:

February 21 - March 3, 2023 (14 days) \\
May 29 - June 2, 2023 (5 days) \\
July 4-7, 2023 (4 days) \\
October 30 - November 2, 2023 (5 days) \\
January 8-12, 2024 (5 days) \\
February 5-9, 2024 (5 days) \\
March 4-8, 2024 (5 days)

[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]