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

[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.

[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.

[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.

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

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

[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.

[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.

[16] In the present matter, the defence 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.

[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.

[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 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:

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.

[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 defence 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:

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.

[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 defence. 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.