R. v. Heintzelman, 2022 BCPC 150

Citation: R. v. Heintzelman 2022 BCPC 150 Date: 20220627 File No: 171785-4-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN THOMAS HEINTZELMAN BAN ON PUBLICATION – s. 486 , 486.4 , 517 of the Criminal Code CORRIGENDUM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.M. McKIMM Counsel for the Crown: J. Gillings and P. Donnachie Counsel for the Accused: T. Paisana and M. Gismondi Place of Hearing: Victoria , B.C. Dates of Hearing: April 25, 26 and May 20, 2022 Date of Judgment: June 27, 2022 A Corrigendum was released by the Court on June 29, 2022. The correction has been made to the text and the Corrigendum is

A Corrigendum was released by the Court on June 29, 2022. The correction has been made to the text and the Corrigendum is appended to this document.

Summary [ 1 ] Working as a massage practitioner the accused, John Thomas Heintzelman, sexually abused two of his patients, one in 2013 and one in 2017. He was first charged on July 9, 2017 and proceeded through a trial. On December 20, 2018 he was acquitted. The Crown appealed that acquittal and on September 6, 2019 the British Columbia Supreme Court allowed the appeal and remitted the charges back to this court for a retrial. Prior to the conclusion of that retrial, the accused brought an application for a judicial stay of proceedings as a result of a breach of his right to a trial within a reasonable time.

For the reasons that follow I am satisfied that Mr. Heintzelman’s right to a trial within a reasonable time has been abridged and the appropriate remedy is a judicial stay of proceedings. Facts The First Trial [ 2 ] Between June and December 2013, the accused sexually assaulted his patient T.T. On July 2, 2017, the accused sexually assaulted his patient E.M. In July 2017 E.M. reported the assault to the police. Mr. Heintzelman is immediately arrested and charged with one count of sexual assault against E.M. That charge is initially set for trial May 5 to 7, 2018.

Shortly prior to that trial commencing, the complaint brought by T.T. is added to the Information and the trial adjourned. It is then set to commence on November 19 to 22, 2018. Closing submissions occurred on December 18, 2018 and on December 20, 2018 the trial judge acquitted Mr. Heintzelman on both counts. [ 3 ] Crown counsel appeals that decision and on September 6, 2019 the British Columbia Supreme Court allows the appeal. The matter is remitted back to this court for trial. At no time during the course of those trial and appellate proceedings did the accused ever raise an issue with respect to his s. 11(

b) right to a trial within a reasonable time under the Charter of Rights and Freedoms . The Retrial [ 4 ] Mr. Heintzelman first appears in the retrial proceedings on September 11, 2019. The Court places Mr. Heintzelman back on bail conditions restricting his travel and prohibiting him from working as a massage practitioner. The matter is adjourned over from time to time while Mr. Heintzelman considers an application for leave to appeal the British Columbia Court of Appeal. On October 2, 2019, the accused files the application for leave to appeal.

On October 16, 2019 the matter is before this court to fix a date for the retrial. There is communication between counsel for the Crown and counsel for the accused as to whether or not a new five-day trial ought to be set before the decision from the Court of Appeal whether or not to grant leave. [ 5 ] On October 16, 2019 counsel for the accused made this submission to the court: … if your honour does not permit me to do that …’cause this is the Crown’s position. The Crown’s position is that I should fix a retrial date. That means tying up five days of court time.

I am loathe to do that, especially since my instructions are to take this to the Supreme Court of Canada if I can and I see the issue that may be able to be crystallized if my client’s prepared to pay to get there, but the point of the story is we’ll take one step at a time. In her response Crown counsel indicated her preference to set the trial date and expressed concern regarding the delay in bringing the matter to trial.

In response to these submissions the court decided: With regard to fixing of five days of court time and whether there should be a fixed date before November 25 or after November 25, I understand the concern that there is about repeated adjournments should the Court of Appeal not make their decision quickly, but I do not think that is a problem that I should confront at this stage. The issue before me is, taking one step at a time, whether it is appropriate to fix a five day hearing now when it may all be for naught as of November 25 or shortly thereafter.

In those circumstances I am of the view that this is a matter in which the fixed date should not occur as it would be a waste of court resources to set five days court time when we do not know that we are going to need it. Somebody else, in essence, would be bumped in getting five days of court time if they needed it if I were to take it up unnecessarily. In the result, the fix date is adjourned over to December 2, 2019.

Although the defence had expressed their own preference to not fix the trial date, it is clear from the record that it is the court’s decision not to give this matter priority. [ 6 ] On December 5, 2019 leave to appeal to the Court of Appeal is denied and shortly thereafter Mr. Heintzelman changes counsel. With the involvement of new counsel, the matter of fixing the date is adjourned from time to time as new counsel and the Crown sorted out their schedules. Both counsel for the Crown and counsel for Mr. Heintzelman agree that the previous counsel’s estimate of five days was certainly sufficient.

Given that this is a retrial, counsel cannot be faulted for that estimate. [ 7 ] On February 21, 2020, five trial days are set for October 19 to 23, 2020. Unfortunately, on September 11, 2020, for various legitimate reasons relating to his professional practice, defence counsel called the matter forward and sought to adjourn the trial dates. At that adjournment application and in the trial setting process counsel for the Mr. Heintzelman indicates availability in the fall of 2020 in particular the weeks of November 16, December 7 and December 16 as well as availability in January 2021. For their

part Crown counsel indicates that January is really the best option for the Crown and in the result the week of January 4 to 8 is offered. Defence is not available that week but is prepared to proceed the following week on January 11, 2021. [ 8 ] At this point, the world is in the middle of the COVID-19 pandemic. [ 9 ] One week prior to trial, Crown counsel filed an application to allow one of Mr. Heintzelman’s victims to testify remotely pursuant to the provisions of s. 714.1.

On January 5, 2021 the accused applies to adjourn the trial out of concern for the fairness of the trial if the Crown is permitted to call its main witness remotely and also indicates that Mr. Heintzelman also wishes to attend the trial remotely. Crown counsel strenuously opposes the application to allow Mr. Heintzelman to appear remotely for his trial. Considering the

length of time already required to start the retrial, the court refuses the application to adjourn. At that time, the court indicated to theCrown that since they had objected to the appearance of the accused remotely for the trial it is unlikely, as a matter of fairness, that thevictim will be allowed to appear remotely. In spite of that, counsel for the Crown insists on proceeding with a s. 714.1 application on thefirst day of trial. On January 13, 2021 the application by the Crown to allow the victim to appear remotely is denied from the bench withreasons to follow.

Two days of trial are lost to that failed application. [10] Crown counsel commences calling evidence on January 14 and continue to do so for three days. Having consumed all five of thedays set for trial, continuation dates are required. Those dates are set for February 8 to 10, 2021 inclusive as well as March 2, 2021 forthe purposes of closing submissions. These are the first available trial dates. On February 8, 2021 Crown leads some concludingevidence and closes its case. The defence begins its case with an opening statement.

The evening of February 8, 2021 Crown counselwith conduct of the trial, falls ill and continuation dates are set for February 23 to 25, 2021, these again are the first available dates. OnFebruary 23, 2021 the accused begins his direct examination. He completes direct examination just before 10 a.m. on February 24, 2021.He is cross examined for the rest of that day and all of the following day. At the conclusion of the three days set for the continuation it isapparent that more court time is needed to conclude the evidence.

The matter is remanded over to March 2, 2021, not for the purposes ofclosing submissions as originally intended but rather, to fix a date for more evidence to be led. [11] On March 2, 2021 continuation dates are set for May 19 to 21, 2021. The trial continues on May 19 to 21, 2021. On May 20,2021 counsel for the accused files a formal notice of application for a stay of proceedings as a result of the delay in bringing this matterto trial. The evidence concludes on May 21, 2021 and at that time closing submissions are adjourned to August 19 to 20, 2021.

It isimportant to note that on each of those 10 days of trial, the court is regularly delayed in commencing proceedings because other mattersare placed on the court list in priority to the continuation of this trial. Over those 10 days a total of 8.8 hours of trial time is lost becausethe court is called upon to deal with other pressing matters in priority to the continuation of this matter. This is an importantconsideration in the assessment of the Court’s duty to give retrials priority.

It is my view that, regrettably, this Court shares responsibilityin the failure of the criminal justice process to facilitate the accused’s right to have his trial within a reasonable time. [12] On August 19, 2021, at the commencement of closing submissions, Crown counsel sought to adjourn their submissions. Thatapplication is initially denied and defence commences their closing submissions. At the conclusion of the first day of submissions Crowncounsel renews their application to adjourn their closing which application is granted.

The Crown is permitted to adjourn their closingsubmissions until September 7, 2021. Prior to those closing submissions taking place, Crown counsel sought to adjourn the Crownclosing again but this occasion citing the need to assign new Crown counsel to complete the closings. The court adjourns the Crownclosing to October 14 and 15, 2021. The matter was then adjourned for deliberation and on December 10, 2021 the court rendered itsverdict finding the accused guilty of both charges. Twenty-seven months have passed since the ordering of the retrial.

Issue [13] Does the amount of time taken to conclude this trial breach Mr. Heintzelman’s rights under s. 11(

b) of the Charter compelling ajudicial stay of proceedings? Discussion 1.) The delay in the conduct of the first trial [14] In this case, the Information is sworn on May 2, 2018. The first issue to resolve is the assessment of the delay caused in theconduct of the first trial and appellate proceedings. At the time of argument that issue had not been determined and both counsel madesubmissions on the entirety of the delay from May 2, 2018 to the conclusion of the retrial.

After submissions were completed on May 6,2022, the Supreme Court of Canada decided definitively that delay caused by the conduct of a first trial is generally not to be consideredin delay analysis for a retrial. In R. v. J.F., 2022 SCC 17 the court found that generally speaking the accused has a positive obligation tobring their delay applications before the commencement of trial and not at the conclusion of the trial process (para. 36), nor on appeal(para. 42).

In the result, “it should now be understood that the computation of the delay restarts at zero when a new trial is ordered.” J.F.at para. 55 and further: [60] When a new trial is ordered, the constitutional clock for calculating delay is reset to zero (Gakmakge v. R. 2017 QCCS 3279;J.E.V., at para.37; Masson v. R. 2019 QCCS 2953, 57 C.R (7th) 415 at para. 91). It follows that only the retrial delay can be countedwhen a s. 11(

b) application is brought in that new trial. This is not to say, however, that a court may not consider first-trial delay inassessing the reasonableness of retrial delay in certain exceptional circumstances. [15] Following the decision of J.F. this court asked counsel to address the significance of that decision on this matter and whether thedecision affected their position. Both counsel agreed that the correct approach in this matter is to only consider the delay from the date ofthe order for retrial to the conclusion of the retrial. In my view, this is correct.

I do not believe that the delay in the conduct of the firsttrial is unreasonable. I also find that the failure of counsel in the first trial to raise the issue of delay leads inevitably to the conclusionthat there was in fact no unreasonable delay in the conduct of the first trial. Furthermore, neither counsel argued that the circumstancesof this case constitute exceptional circumstances such as might require a consideration of the first trial delay (J.F. at para 60). That too isthe correct approach, the conduct of the first trial was orderly and expeditious.

Delay in the appellate process is clearly not considered inany s. 11(

b) analysis and this is particularly so in the event of an appeal of an acquittal. Following the acquittal, the accused is no longera person charged with an offence and s. 11(

b) has no application to them. It stands to reason that the appellate time in this case inparticular is not to be considered in my analysis of delay. See also: R. v. Potvin (SCC), [1993] 2 S.C.R. 880; R. v.Crant, 2018 ONSC 1479 at para. 17. This seems to be the case even if the accused is convicted at the first trial and seeks an appeal ofthat conviction. See: R. v. Richard, 2017 MBQB 11. [16] Consequently I will consider only that delay from the ordering of the retrial, when Mr.

Heintzelman regained the character of aperson charged with an offence (September 6, 2019) to the conclusion of the second trial (December 10, 2021) a period of slightly over27 months. 2.) Delay in the conduct of the retrial

[17] As is the practice in delay litigation, each party took a microscopic analysis of the conduct of the other in an effort to classifyportions of the period of time from the order for retrial to conclusion of the trial as the fault of the other party or inherent delay orexceptional circumstances.

While this vivisection of each parties’ case is somewhat helpful, it tends to lose sight of the true purpose of s.11(b): To ensure that all persons charged with an offence have their trials in a manner consistent with the Crown’s obligation to ensurethat trials are conducted without unreasonable delay. “In the case of the Crown, the (Jordan) approach clarifies the content of itsconstitutional obligation to bring the accused to trial within a reasonable time.” J.F. at para. 112 [emphasis added].

The real focus is toensure that all citizens are entitled to trials within a reasonable time: [19] As we have said, the right to be tried within a reasonable time is central to the administration of Canada’s system of criminaljustice.

It finds expression in the familiar maxim: “Justice delayed is Justice denied.” An unreasonable delay denies justice to theaccused, victims and their families and the public as a whole. [20] Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocentaccused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because atimely trial means an accused person will spend as little time as possible held in pretrial custody or living in the community under releaseconditions.

Security of the person is impacted because a long delay trial means prolonging the stress anxiety and stigma an accused maysuffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced inmounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence. R. v.

Jordan, 2016 SCC 27 , 2016 S.C.C. 27 [18] The Supreme Court of Canada has made it clear that all parties to the criminal justice process: the court, the Crown and thedefence have a fundamental obligation to ensure that this constitutional prerequisite to a fair trial is met. To assist in this work theSupreme Court established a prospective approach to analysing pretrial delay which included the adoption of presumptive ceilings forhow long it should take to conclude a relatively straightforward Provincial Court trial.

In this case the presumptive ceilings is 18 monthsfrom the laying of the information to the conclusion of the trial. In J.F. the court specifically considered whether or not the 18 monthpresumptive ceiling established in Jordan applies to a retrial or whether a lesser presumptive ceiling should apply. The Court decidedthat the 18 months ceiling must be applied to retrials in the same fashion as it applies to the first trial (J.F. at para. 66).

At the same time,however, the court noted that the presumptive ceilings established in Jordan are certainly ceilings and not floors and that even delay thatfalls within the 18 months ceiling may well be unreasonable after careful consideration of the case. [19] At its simplest, the retrial of this matter consumed 27 months, well in excess of the 18 months ceiling mandated by the SupremeCourt of Canada in Jordan. Unless the delay in bringing the matter is defence delay there is presumptively a Charter breach which theCrown has the burden to justify.

Defence delay is that delay which is caused by the defence or delay which has been explicitly orimplicitly way. Waiver by the defence must be clear and unequivocal. It must be done with the accused having full knowledge of theirrights as well as the effect that waiver will have on those rights.

I must give careful consideration to any delay which is caused solely bythe conduct of the defence or tactics of the accused shown to be a deliberate and calculated effort to delay the trial (Jordan at para. 63).It is also clear that defence delay is only that portion of the delay in which all other parties to the proceeding are ready and able toproceed but cannot do so because of defence counsel’s unavailability.

Periods of time in which the defence are not available and that theCrown or the Court are not available to not constitute defence delay even if it is the defence that caused that period to be considered. TheCourt in Jordan writes: [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, thedefence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applicationsand requests that are not frivolous will also generally not count against the defence.

We have already accounted for proceduralrequirements in setting the ceiling. As such a deduction would run contrary to the accused’s right to make full answer and defence. Whilethis is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [20] In

summary, I must first determine the entire amount of the delay and then deduct from that delay defence delay, that is justdelay that has been specifically waived or is caused by illegitimate defence actions undertaken in an effort to delay the trial. If afterdeducting defence delay the amount of time taken to conduct proceeding is in the in excess of the ceilings imposed by Jordan for thedelay is presumptively unreasonable however the Crown may rebut that presumption by showing that the delay is in fact reasonablebecause of certain exceptional circumstances.

Exceptional circumstances are those which lie outside of the Crown’s control because theyare unforeseen or reasonably unavoidable and that the Crown cannot reasonably remedy.

In considering exceptional circumstances it isalso important for the court to remember that the delay caused by those exceptional circumstances must be subtract from the overalldelay however the Crown must also show that it has used efforts to mitigate that delay caused by the discrete exceptional circumstance. [21] It is important to remember that the court also has an obligation to not only ensure the accused’s Charter rights are protected butalso to take all reasonable steps to mitigate any delay caused by exceptional circumstances. [75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purposeof determining whether the ceiling has been exceeded.

Of course the Crown must always be prepared to mitigate the delay resulting froma discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capableof prioritizing cases that have faltered due to the unforeseen events. (See R. v. Vassell, 2016 SCC 26) Thus, any portion of the delay thatthe Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entireperiod of delay occasioned by discrete exceptional events).

I note this quote in particular because in my view there are instances in the conduct of this retrial where the court has clearly failed toproperly prioritize this matter and ensure that it is conducted in a manner consistent with Mr. Heintzelman’s constitutional rights. [22] In considering delay in the context of a retrial the court pointed out two important considerations in determining whether a delayin the conduct of a retrial less than that mandated by Jordan would become unreasonable.

They are; the need to prioritize retrials and theconsideration that retrial should generally take less time than first trials. The Supreme Court of Canada writes:

[72] These two factors are grounded in the duty of all participants in the criminal justice system to act in a timely manner. In the retrial context, this means that everyone, and especially the crown , must ensure that retrials are prioritized when trial dates are set so that retrial delay is as short as possible. Recognition of these factors is based on the objectives of

section 11 (b). First prioritizing retrials and considering that, as a general rule, retrials should be conducted in less time protects the

section 11(

b) rights of accused persons and limits the negative consequences of being charged with a criminal offence, [ Jordan , at para. 20 ; Morin at pp. 801 to 803]. The making of an order for a new trial prolongs the period during which the accused is a person charged with an offence as well as the stress, anxiety and stigma associated with having that status. Indeed, this Court reiterated in Jordan that lengthy delay gives rise to an inference of prejudice to the accused [paras. 34, 54 and 110].

Although Jordan eliminates the concept of prejudice as an analytical factor, this concept nonetheless remains central under the new framework, because the setting of presumptive ceilings was in fact based on the presumption that significant delay is prejudicial to an accused [para. 54]. Secondly its adoption of these two factors reflects recognition of the fact that prolonged delay also causes prejudice to victims, witnesses and the justice system as a whole [para. 110; see also paras. 22 to 27]. R. v.

J.F. [Emphasis Added] It is apparent that, apart from all the other factors enumerated in the Jordan analysis, I must also consider that this is a retrial and that it should have been given priority and should have been capable of being conducted in an expeditious fashion. The Crown, nor the accused in this case, pointed to or tried to argue that the retrial was in any way different from the first trial.

By that I mean that no unique evidentiary or procedural issues arose that required the retrial to take significantly longer than the original trial. 3.) Assessing the periods of time in the conduct of the retrial [ 23 ] In this case, the retrial took 27 months from the order setting aside the acquittal and the final order of conviction. I must first deal with whether or not there is any defence delay as that concept is developed in the jurisprudence. I find as a fact that none of the delay is attributable to tactics or processes deliberately employed by the defence to delay the trial.

On the contrary, counsel for the accused conducted his defence in an exemplary manner and worked cooperatively with the Crown throughout the trial process to limit the trial to live and important issues. As I indicated in court, all counsel in this matter must be commended for their exemplary professionalism throughout. Other than brief periods of delay caused by Mr. Heintzelman’s decision to change counsel, there are very limited periods of time for which it may be said that the accused waved the delay.

I will below review the careful chronology created by both counsel and point out those limited periods of time where and to what extent any delay has been waived. a.) Delay from the date of the order for retrial and the date to set first retrial dates [ 24 ] The retrial of this matter was ordered on September 6, 2019. Mr. Heintzelman appeared in court for the first time following the Crown’s successful appeal on September 11, 2019 and placed back on certain bail conditions. The case was adjourned for just over a month to allow counsel to confer and obtain mutually convenient dates for trial.

In email communications between the original trial counsel for the accused and the original trial counsel for the Crown, counsel for the accused indicated that, he did not wish to fix a trial date until after the leave to appeal to the Court of Appeal was exhausted. Counsel ruminated that perhaps any delay occasioned by waiting to fix a trial date until after the leave application was exhausted could fall at the feet of the accused and be considered defence delay.

On October 16, 2019 counsel for the accused, in his submissions regarding the fixing of a trial date, expressed certain reservations regarding setting a five day trial before a decision had been made to either apply for leave to appeal to the Court of Appeal or for the Court of Appeal to make that decision. There was certainly no clear and unequivocal waiver of any delay occasioned by the accused’s right to seek appellate review of the Supreme Court’s order.

Counsel for the Crown expressly opposed delaying the fixing of the new trial dates and it cannot be said that it was the conduct of the Crown that caused the delay. It was the court that chose not to prioritize this retrial and expressed that idea overtly in its decision when it stated: In those circumstances I am of the view that this is a matter in which the fixed date should not occur as it would be a waste of court resources to set five days court time when we do not know that we are going to need it.

Somebody else, in essence, would be bumped in getting five days of court time if they needed it if I were to take it up unnecessarily. It is apparent that the court chose to not prioritize this retrial in favour of some matters which may have or might be set pending the leave application. While I am sympathetic to the courts analytical processes in making that decision, it is clearly contrary to the express direction trial courts have now been given around the need to prioritize retrials.

As I indicated above, the Supreme Court of Canada expressly admonished all partners in the criminal justice process to take responsibility for ensuring that trials proceed as swiftly as reasonably possible. The decision to delay fixing trial dates is an example of this court failing its duty to protect the accused’s constitutional right to be tried within a reasonable time. I find that this period of delay is not an exceptional circumstance and is not defence delay.

It is not been shown in my view that the accused clearly and unequivocally waived any delay caused as a result of adjourning the matter for two months to allow the leave application to be completed. b.) Delay to facilitate a change of counsel [ 25 ] In late fall 2019 Mr. Heintzelman secured new counsel for the conduct of the retrial. On December 13, 2019 Mr. Heintzelman’s new counsel contacts the Crown to begin discussing necessary adjournments to allow him to obtain the file, review it, obtain instructions and set arraignment dates.

There is no question that the period of time between December 13, 2019 when consent is sought to adjourn the arraignment process until that arraignment occurred falls at the feet of the defence. As Mr. Heintzelman wished to have new counsel it is implicit in that process that any delay occasioned by instructing his new counsel is waived by him. Counsel for the accused and counsel for the Crown both agree that the retrial should be scheduled for the same amount of time as was required for the first trial and on February 21 scheduled the matter for a five day trial from October 19 to 23, 2020.

I find that the delay from December 13, 2019 when the matter could have been set for trial and February 21, 2020 when the matter is set for trial is properly defined as “defence delay” and must be removed from the overall delay for Jordan purposes. I deduct two months and eight days from the total delay in the conduct of the retrial. We are now left with 25 months of delay. [ 26 ] During the from February 21, 2020 and August 17, 2020 neither the court nor the Crown nor the accused are ready to proceed.

Consequently, I consider the period of time from February 21, 2020 to August 21, 2020 as institutional delay and not deducted from the

charter analysis. From August 21, 2020 to October 23, 2020 only defence counsel was not available to proceed and, as a result the matter, was ultimately fixed for October 23, 2020. It is not clear from the record whether there were any other dates when the accused and his counsel were ready to proceed but either the court or the Crown were unable to proceed. I also accept the proposition that counsel for the accused cannot be required to be in a state of perpetual availability. R. v. Godin, 2009 SCC 26 at para. 23 .

However they must accept some responsibility for that two-month delay and I find that splitting that delay equally between the Crown, the court and the accused is reasonable.

In the result I deduct one month from the overall delay and we are now left with 24 months of delay. c.) Delay occasioned by the appointment of defence counsel’s partner to the court [ 27 ] Approximately one month prior to the trial commencing, in October 2020, counsel for the accused sought an adjournment of the trial because one of their partners accepted an appointment to the Provincial Court bench and a senior associate left the firm to accept employment with Crown counsel’s office. The application was granted in the matter and adjourned over to commence the trial January 12 to 18, 2021.

At the time the adjournment was sought, counsel for the accused indicated that their office was available to proceed in as little as one month. The court and the Crown were not available that quickly and as a result, the matter had to be adjourned over to January as indicated. I agree with submissions of counsel for the accused that some portion of the adjournment from the original October trial dates to the January 12 trial dates falls at the feet of the defence and is properly defined as defence delay. In my view it is appropriate to ascribe one month of that delay rather than two to the defence.

Counsel for the accused only sought the necessary one month in order to rearrange their offices. It cannot be said that the accused implicitly or explicitly waived anything beyond that one month other than as may be absolutely necessary to the conduct of the trial. In the result, I deduct one further month from the overall delay and we are now left with 23 months of delay. d.) Delay in the conduct of the trial commencing January 12, 2021 [ 28 ] In my view very little, if any, of the delay occasioned after the commencement of the trial on January 12, 2021 can be defined as defence delay.

There were certainly some exceptional circumstances which necessitated delay, such as Crown counsel falling ill, but none of those justify the inordinate delay in bringing this matter to conclusion once it had commenced. [ 29 ] The trial is scheduled to commence on January 12, 2021. In December 2020 the Crown first indicated a desire to proceed and call one of the two complainants by video from their home. On January 4, 2021 the Crown file an application together with supporting materials to allow the complainant to testify remotely.

In response to that application, counsel for the accused applies to adjourn the trial in its entirety as a matter of fairness. Counsel for the accused points out that the accused also has significant concerns and wishes to attend the trial remotely. Counsel for the Crown strenuously opposes any application by the accused to appear for his trial remotely. They then take the entirely contradictory approach to their own witness who they assert ought to be allowed to appear remotely.

When the application to adjourn is put before the court, the court advises counsel for the Crown that, having reviewed their materials, it is highly unlikely that the court will accede to a s. 714.1 application given the position of the Crown relative to the accused. In spite of that admonition and, as is their right, the Crown elects to proceed with a s. 714.1 application on the first day of trial and two days of trial time are consumed in that application.

The Crown’s application is dismissed from the bench with reasons to follow. [ 30 ] The trial finally commences and three days of evidence are led before the first block of five days have been consumed. Continuation dates are set for February 8, 2021 and on that date Crown closes their case. The defence makes its opening statement. On February 9, 2021 the trial was adjourned because of illness on the part of the Crown. A brief adjournment to February 23 is granted given the circumstances. The court made the following comments on granting the adjournment; THE COURT: Mr.

Heintzelman, I’ll speak directly to you, if you don’t mind. I apologize for this. Obviously, it’s something no one can control. And this is going on, I’m sure, in your life for a very, very long time and you’re very keen to get it over with. However, it’s the best we can do. I think that that is the way to proceed, rather than keep it stuttering along hoping counsel for the Crown gets well. So I think the three days we can get at it and get – and get it done, so … The court also indicated that the system needed to make priorities with respect to the continuation of this matter.

I agree that a brief adjournment of two weeks is an exceptional circumstance which ought to be deducted from the overall delay. We are now left with a delay of 22.5 months. [ 31 ] The trial proceeded on February 23, 24 and 25, 2021. During those three days of hearing, the court lost in excess of eight hours of court time to other “more urgent” matters that had been placed on the court list. This means that a full day and a half of a sitting time is lost to other matters. This fact, together with the way in which the prosecution is conducted, certainly led to the trial being needlessly protracted.

The matter is adjourned over at the conclusion of the February 25, 2021 hearing date to fix more days for the Crown to conclude. The next hearing dates offered and accepted are on May 19 to 21, 2021 to conclude cross-examination of the accused and submissions. This is the first occasion in which continuation dates are set well in excess of 30 days beyond the date of hearing.

Setting dates for continuation outside of the 30 day period is a specific breach of practice direction CRIM 04 issued February 23, 2015 which provides: When a scheduled trial or hearing has not been completed in the time provided, it will be scheduled to conclude within 30 days unless otherwise approved by the relevant Regional Administrative Judge or Local Liaison Judge [where applicable] on the advice of the local judicial case manager.

Nowhere in any of the voluminous records provided to the court during the course of submissions on this application is there any evidence of any one insisting that this matter be should be scheduled in compliance with the court’s practice direction. Given that it is the burden of the Crown to ensure that the accused’s constitutionally protected rights are respected, in my view, the failure to bring to the attention of the judicial case manager or the Regional Administrative Judge the fact that this matter was not proceeding as required by the courts, these delays all fall at the feet of the Crown.

If delays for exceptional circumstances are necessary those delays ought never to have been in excess of 30 days unless that additional time has been specifically addressed by the Regional Administrative Judge. In my view it is not sufficient for the Crown to simply complain in emails about concerns around the length of time a trial is taking to conclude, rather it is incumbent on them to bring these delays to the attention of the court so that specific steps can be taken to remedy the delay.

[70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took all reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pretrial applications, or resorting to any other appropriate procedural means.

The Crown, we emphasize is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay. Jordan at para. 70 [ 32 ] As I indicated, there is no evidence before this court in any of the material suggesting that the Crown took advantage of any of the court management processes to seek assistance from the court or indeed to seek assistance from counsel for the accused.

To the contrary, counsel for the accused, expressing significant concern with respect to delay, offers to admit the evidence of the accused’s wife by way of an agreed statement of facts. There was no response to this offer. [ 33 ] Counsel for the Crown cross-examined the accused over the course of four days. Her cross-examination is extensive, detailed, particular and effective. Indeed their cross-examination led to the courts conclusion that Mr. Heintzelman is not a credible witness.

The court takes no issue with the manner of the conduct of the cross-examination except to note that it was the Crown who proposed to new counsel that five days was an adequate amount of time to complete the entire trial including closing submissions. That estimate was clearly wildly inaccurate. There is no doubt that the failure to properly estimate the length of a case, in this instance, falls at the feet of the Crown.

I have no reason to question the manner in which the cross-examination was conducted or why senior counsel for the Crown chose to conduct it in that fashion except to observe, in terms of the delay analysis, that the failure to properly consider what must have been a new approach to cross-examination would significantly affect the amount of time required to conduct the trial. [ 34 ] At the conclusion of the May trial dates it was apparent that closing submissions could not possibly be completed in the time remaining following to the Crown’s extensive cross-examination of the accused.

Although dates were offered by the defence in June and July 2021 none of those could be accommodated. Rather submissions were set to be heard August 19 and 20, 2021. At the commencement of the closing arguments on August 19, 2021, Crown sought to adjourn the submissions on the bases they had only recently received the defence’s written brief. While that application to adjourn was initially denied, the court ultimately acceded to the Crown’s application at the end of the first day. Closing submissions for the Crown were then scheduled to occur on September 7, 2021, approximately three weeks later.

Two days prior to that hearing, on Sunday, September 5, 2021, counsel for the Crown delivered to the accused their written argument. [ 35 ] Immediately prior to the commencement of those arguments, Crown counsel sought a lengthy adjournment of their submissions because the trial Crown had been reassigned and new Crown needed to be appointed and properly prepare submissions. The application was granted and Crown submissions were scheduled to complete October 14. They were ultimately completed October 15, 2021.

None of that time is attributable to the defence and is all counted towards delay. e.) Delay between final closing submissions and decision [ 36 ] The delay of two months between the Crown concluding her able submissions and the decision finding Mr. Heintzelman guilty is specifically excluded from the Jordan analysis of delay. R. v. K.G.K ., 2020 SCC 7 at paras. 3 and 23 . In the result, two months are deducted from the overall delay. This leaves 20.5 months of delay well in excess of the Jordan mandate of 18 months to conclude simple

summary conviction trials in Provincial Court. The Crown has failed to persuade me that the delay is reasonable as a result of exceptional circumstances nor that they nor the courts have taken reasonable efforts to ameliorate the delay caused by circumstances in the conduct of the case. [ 37 ] In this case I would go further and say that, even if I were satisfied that there were some exceptional circumstances that would suggest that this matter in fact was concluded in less than 18 months, it is still my view that Mr. Heintzelman’s right to be tried within a reasonable time has been abridged.

Other than for the brief period of time necessary to allow Crown counsel to recover from her illness, there is no other circumstance that should have compelled this matter to take longer than 12 months to conclude. In my view this is one of those cases where the defence has established, by way of their submissions and materials filed, that there was a breach of s. 11(

b) even if one considered the delay at something less than 18 months. As Jordan instructs, the 18-month limit for delay is a ceiling, not a floor. While other courts might take a different view of the appropriate characterization of some of the periods of delay in this matter, it is my firm view that the record establishes that this matter should most certainly have been completed and something less than half the time that it ultimately took to complete. Conclusion [ 38 ] Mr. Heintzelman’s constitutional right to be tried within a reasonable time has been breached.

That being the case, “a stay must be entered.” Jordan at para. 76 Order [38] A judicial stay of proceedings is ordered in this matter. _________________________________ The Honourable Judge D.M. McKimm Provincial Court of British Columbia

CORRIGENDUM - Released June 29, 2022 In the Reasons for Judgment dated June 27, 2022, the following changes have been made: [ 39 ] On the Style of Cause page the name of the Counsel for the Accused indicated as “M. Gisconi” on the cover page should read “M. Gismondi”. [ 40 ] The Reasons for Judgment has been corrected to reflect this change. _________________________________ The Honourable Judge D.M. McKimm Provincial Court of British Columbia