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 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:

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.

[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 defence'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 defence's position on the suggested admissions.

[31] In response, Mr. Sockett responded indicating that Mr. Genest would be counsel for the defence 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 asking for an answer. Not having received an answer from the defence, 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, the defence 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 the defence multiple times to obtain trial dates and work on the agreed statement of facts. The defence did not seem to want to answer, thinking that the answers could wait. Even after the question of trial language was raised, the defence 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 the defence began to engage in the matter.

[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.

[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.

[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.

[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.

[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. The defence 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. The defence asked around 10 questions to confirm that the forensic pathologist could not determine the deceased's cause of death.

[60] Finally, on the DNA analysis expert, the defence maintains 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.

[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 defence 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 the defence 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.