R. v. Heintzelman, 2024 BCSC 187

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Heintzelman, 2024 BCSC 187 Date: 20240206 Docket: 171785 Registry: Victoria Between: Rex Appellant And: John Thomas Heintzelman Respondent Before: The Honourable Madam Justice J. A. Power On appeal from: An order of the Provincial Court, dated June 27, 2022 ( R. v. Heintzelman , 2022 BCPC 150 , Docket No. 171785, Victoria Registry). Reasons for Judgment Counsel for the Appellant: L. A. Vizsolyi Counsel for the Respondent: T. C. Paisana Place and Dates of Trial/Hearing: Victoria, B.C. June 27 - 28, 2023 Place and Date of Judgment: Victoria, B.C.

February 6, 2024 INTRODUCTION [ 1 ] This is a Crown appeal of a decision by the Provincial Court judge to enter a stay of proceedings after finding the respondent’s right to be tried within a reasonable time under s. 11(

b) of the Charter was infringed. The finding was made on a retrial of the respondent for two counts of sexual assault. [ 2 ] The history of the matter is lengthy. The respondent was first charged in July 2017 with a single count of sexual assault. A second count relating to a separate complainant was later added and the respondent was tried and acquitted of both counts. The Crown appealed the acquittal at the first trial successfully and a new trial was ordered. [ 3 ] The retrial was ordered on September 8, 2019 and submissions concluded on October 15, 2021.

On December 10, 2021, the trial judge found the accused guilty as charged, but delayed entering that conviction pending a delay argument. On June 27, 2022, the trial judge found that the respondent’s right to a trial within a reasonable time was infringed and that the appropriate remedy was a judicial stay of proceedings. In his judgment the trial judge conducted a detailed analysis of the 27-month period and found a net delay of 20.5 months, which he noted, was “... well in excess of the Jordan mandate of 18 months to conclude simple

summary conviction trials in Provincial Court”: para. 36. The trial judge went further and stated that the matter should have taken no more than 12 months to conclude: para. 37. [ 4 ] The appellant Crown acknowledges that the delay on the retrial was lengthy but argues on this appeal that there were numerous reasons for the delay that the trial judge failed to properly consider and account for. The appellant argues that properly counted, the delay was 14.5 months, which is within the Jordan framework: R. v.

Jordan , 2016 SCC 27 . [ 5 ] The respondent defendant argues that on this appeal the appellant raises new arguments, attempts to relitigate findings of fact, and miscalculates periods of delay. The respondent also argues that even if the appellant’s submissions were to be accepted, and the delay was counted as 14.5 months as argued on the appeal, the appellant ignores the trial judge’s finding that any more than 12 months to prosecute this retrial would have been unreasonable.

The respondent says that finding is entitled to deference and the appeal could be dismissed on that point alone. [ 6 ] For reasons which I will now explain, I have concluded that the appeal must be dismissed.

PROCEDURAL HISTORY [ 7 ] The delay argument was thoroughly argued before the trial judge over three days in April and May 2022. In his reasons for judgment rendered June 27, 2022, the trial judge succinctly summarized the matter before him as follows: [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. [ 8 ] Both parties filed written arguments as part of their argument before the trial judge. Included with the respondent’s argument at trial was a timeline, which the appellant adapted as part of their submission by adding more background. There is no issue between the parties on the timeline generally, although the appellant submits that their version of the timeline is more complete. The timeline was before this Court as background to this appeal. [ 9 ] The decision in R. v.

J.F. , 2022 SCC 17 , was released following the closing submissions on delay, before the trial judge rendered his decision. With the benefit of J.F. , the trial judge only addressed the retrial delay. Both parties on this appeal agree he was correct in doing so. [ 10 ] The respondent’s argument divides the time at issue into eight segments as follows: (

i) Charge Approval to the Conclusion of the First Trial and Appeal (July 9, 2017 to September 5, 2019) (ii) Intake for Retrial (September 6 to October 15, 2019) (iii) Adjournment During Leave Application (October 16 to December 12, 2019) (iv) Change of Counsel (December 13, 2019 to February 21, 2020) (

v) First Retrial Dates (February 22 to October 19, 2020) (vi) Second Retrial Dates (October 23, 2020 to January 18, 2021) (vii) The Conduct of the Retrial (January 19, 2021 to October 15, 2021) (viii) Deliberation Time (October 16 to December 10, 2021) [ 11 ] I will briefly discuss these segments before turning to the issues on the appeal and the law. First Trial and

Summary Conviction Appeal [ 12 ] The respondent was first charged in July 2017. The first trial was originally scheduled for four days but completed in five. The first trial judge rendered his decision on December 20, 2018, a period of approximately 17 months. As I have stated, the respondent was acquitted on the first trial. The Crown successfully appealed and a new trial was ordered on September 6, 2019. Scheduling the Retrial [ 13 ] The circumstances surrounding the setting of the retrial dates are set out in detail in the parties’ submissions.

In brief the parties first appeared in court on September 11, 2019 to execute a warrant issued pursuant to the order for a new trial and to address a consent release. The matter was adjourned on multiple occasions. In late September 2019, the respondent’s counsel wrote to the appellant advising that he had instructions to file an application for leave to appeal and that the respondent did not wish to fix a trial date until the appeal was exhausted. The appellant did not consent to this request, and the matter was spoken to on October 16, 2019.

The Provincial Court judge granted the respondent’s application. [ 14 ] The leave application was denied on December 5, 2019, and after that the respondent changed counsel. The matter was adjourned again and on February 21, 2020, a five-day trial was set for October 19 – 23, 2020. Adjournment of October 2020 Trial Dates [ 15 ] On September 11, 2020, the respondent applied to adjourn the October trial dates due to the reshuffling of files in his office related to the appointment of a partner at his firm to the Provincial Court bench and another lawyer in the firm having moved on to a new position.

The appellant opposed the adjournment because of its concern about the dated nature of the file. The adjournment was granted. [ 16 ] New trial dates were fixed for January 12 – 18, 2021. The Retrial [ 17 ] The retrial did not complete during the January dates. The appellant brought an application to have a witness testify remotely due

to health concerns relating to the COVID 19 pandemic. The appellant brought that application even though the trial judge had signalled that it was highly unlikely to proceed. [ 18 ] The trial commenced on January 14 and continued on the 15 and 18, 2021. Three continuation days were secured within three weeks (February 8 – 10, 2021). On February 9, 2021, the appellant was ill, resulting in an adjournment of February 9 – 10.

The Court and defence were able to accommodate continuation dates two weeks later (February 23 – 25, 2021). [ 19 ] During February 23 – 25, 2021, the Court lost approximately 1.5 days to other “more urgent” matters being placed on the list. This included a full preliminary inquiry and sentencing. As a result, further continuation dates were secured on May 19 – 21, 2021. Defence counsel offered dates in April 2021, but these could not be accommodated. [ 20 ] The evidence at trial concluded on May 19 – 21, 2021. On May 20, 2021, the respondent filed a s. 11(

b) application, alleging an infringement of the respondent’s right to a trial within a reasonable time. Despite the existence of the s. 11(

b) notice, closing submissions were scheduled for August 19 – 20, 2021. The respondent offered dates in June and July 2021 which could not be accommodated. The Court offered August 11 – 12 but the respondent’s counsel was not available. [ 21 ] On August 20, 2021, the appellant sought an adjournment of its closing submission because it was not prepared to proceed.

The adjournment was granted by the trial judge and the matter was rescheduled to September 7, 2021. [ 22 ] In early September 2021, the appellant appeared and adjourned its closing submissions again, noting that its prosecutor had been reassigned to another case. As a result, a new prosecutor would have to familiarize themselves with the file and prepare for closing submissions. Closing submissions were completed on October 15, 2021. On December 10, 2021, the Provincial Court judge convicted Mr. Heintzelman on both counts but did not enter the conviction pending the delay argument.

Trial Judge’s Reasons on the Delay Application [ 23 ] As I have said, the delay application proceeded over three days (April 25, 26 and May 20, 2022) and the trial judge rendered his decision June 27, 2022.

The trial judge started his discussion on the delay in the retrial by considering only the delay in the ordering of the retrial (September 6, 2019) to the conclusion of the second trial (December 10, 2021), a period of slightly over 27 months: para. 16. [ 24 ] He then went on to state the following: [17] As is the practice in delay litigation, each party took a microscopic analysis of the conduct of the other in an effort to classify portions 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 or exceptional 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 ensure that trial are conducted without unreasonable delay. [ 25 ] The trial judge found the following deductions from the 27 months as follows: i. Two months, eight days as a result of the respondent changing counsel between December 13, 2019 and February 21, 2020; ii. One month for defence unavailability when the trial was scheduled in 2020; iii.

One month for defence adjourning the original trial dates; iv. Two weeks on account of Crown counsel’s illness in February 2021; and v. Two months for deliberation time. [ 26 ] In

summary the trial judge deducted a total of 6.5 months, leaving a net delay of 20.5 months. [ 27 ] The trial judge found the 20.5 months of delay well in excess of the Jordan mandate of 18 months to conclude simple

summary conviction trials in Provincial Court. [ 28 ] He stated: [36] ... 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 . [Emphasis added.]

ISSUES [ 29 ] The appellant submits that the trial judge erred by: 1. Failing to allocate the delay resulting from the successful defence application to adjourn the fixing of the retrial dates to await the outcome of the leave application as defence delay or, alternately, appellate delay; 2. Allocating only one month of delay as defence delay between August 20, 2020 and October 23, 2020; 3. Allocating only one month of delay as defence delay when the trial was adjourned from October 23, 2020 to January 18, 2021; 4.

Allocating only two weeks to exceptional circumstances arising from the illness of the Crown on February 9 and 10; 5. Failing to consider the inadequate trial estimates made by both parties as exceptional circumstances including palpable and overriding error in attributing all of that delay to the Crown; 6.

Failing to consider the effects of the COVID 19 pandemic on the scheduling of continuation dates and in its direct impact on the loss of the January 13 and 14 trial dates. [ 30 ] The appellant submits that the first three grounds are dispositive of the appeal, but the remaining grounds may impact any assessment of the delay. THE LAW [ 31 ] The Supreme Court of Canada addressed the Jordan “clock” in appeal retrials in R. v. J.F. , 2022 SCC 17 . The Court reaffirmed that the principles in Jordan are “first and foremost, a prospective framework that encourages parties to act proactively”: at para. 73.

The Court held that when a retrial is ordered, the constitutional clock for calculating delay is reset to zero and only retrial delay can be counted when a s. 11(

b) application is brought. [ 32 ] In his discussion of factors to be considered in determining the reasonableness of retrial delay where it is below the applicable presumptive ceiling, Chief Justice Wagner established in J.F. that “[t]he retrial context differs from that of a first trial, since normally the parties have already presented their evidence and arguments a first time”.

He noted that in assessing retrial delay, courts should consider first, the need to prioritize retrials when scheduling hearings, and second, retrials are, as a general rule, to be conducted in less time than first trials: J.F. at paras. 70 – 71 . The analysis must remain contextual and take into account the specific circumstances in each case. Standard of Review [ 33 ] In R. v.

Virk , 2021 BCCA 58 , Madam Justice Fenlon wrote for a unanimous five-member division and found that despite serious charges, including the sexual abuse of vulnerable complainants, a stay of proceedings was necessitated given serious delays. [ 34 ] The Court set out the standard of review for a judge’s allocation of periods of delay: [8] Allocation of delay is the act of assigning delay to a particular category under the Jordan or Morin frameworks, for example, to defence delay or institutional delay.

This step is also commonly referred to as “characterization of delay.” In a majority of cases this Court has clearly and consistently stated that allocation or characterization of delay on a s. 11(

b) application is a question of law reviewable on a correctness standard: R. v. K.N. , 2018 BCCA 246 at para. 13 ; R. v. Millar , 2019 BCCA 298 at para. 76 ; R. v. Vega Ramirez , 2019 BCCA 446 at para. 26 ; R. v. Christhurajah , 2019 BCCA 210 at paras. 110–113 ; R. v. Rai , 2019 BCCA 377 at para. 97 ; R. v. Executive Flight Centre Fuel Services Ltd. , 2019 BCCA 139 at para. 30 ; R. v. Balogh , 2020 BCCA 96 at para. 19 . In contrast, underlying findings of fact have been held to be reviewable on a standard of palpable and overriding error: R. v.

Horner , 2012 BCCA 7 at para. 70 . [ 35 ] Madam Justice Fenlon also distinguished between the “attribution” of delay and the “allocation” of delay. “Attribution” was defined as being “what or who caused a period of delay”: [13] [...] When a judge determines what caused a delay or whether steps were taken with the intention of delaying proceedings and was thus illegitimate, the judge is making a finding of fact or drawing an inference. This attribution of responsibility is therefore owed deference on appeal. Allocation is distinct from attribution.

Allocation involves the application of legal principles to the facts found concerning the cause of delay, in order to categorize the period of delay within the Jordan or Morin framework. Attribution (deciding who or what caused a delay) will often effectively determine allocation (under Jordan whether that delay will be deducted), but that is not always so. They are distinct steps, and different standards of review apply to each step. [ 36 ] Madam Justice Fenlon summarized the relevant standards of review on s. 11(

b) decisions, writing: [23] […] That standard will vary depending on the nature of the error identified, recognizing that there are different steps in the analysis: 1. Findings of underlying facts—who did what, when and the context surrounding those events; 2. Attribution of responsibility—who or what caused the delay, including discretionary decisions such as whether conduct was legitimate, whether a case was complex, or whether there was reasonable reliance on the law as it stood pre- Jordan ; and

3. Allocation of periods of delay—categorizing periods of delay as either defence delay or as an exceptional circumstance; and 4. The ultimate decision of whether to impose a stay for unreasonable delay. [24] Underlying findings of fact and attribution of responsibility are reviewed on a deferential standard of palpable and overridingerror. Discretionary decisions are reviewed on a deferential standard and will be interfered with only if there has been a misdirection inlaw, a palpable or overriding error of fact, or a clearly wrong decision that resulted in an injustice: R. v.

Roberts, 2020 BCCA 307 atparas. 82–84; K.G.K. at para. 81. The allocation of periods of delay is reviewed on a standard of correctness. The ultimate decision of ajudge to impose a judicial stay for unreasonable delay is a question of law and is likewise subject to a correctness standard: Yusufapproving Pauls at para. 40; Millar at para. 88.

Behaviour of the parties Defence Delay [37] The Court in Jordan cautioned against tactical defence delay, stating “It is obvious that delays caused by attempts to obstruct thecourse of the trial, that amount to “deliberate and calculated tactic[s] employed to delay the trial”, or other vexatious or bad faith conductby the accused, cannot count against the state: R. v.

Askov, [1990] 2 S.C.R. 1199, (SCC) at p. 1228”: at para. 193 [38] The trial judge noted in his reasons that there was no delay instigated by the defence and noted the high calibre of counsel workfor both parties: [23] [...] I find as a fact that none of the delay is attributable to tactics or processes deliberately employed by the defence to delay thetrial. On the contrary, counsel for the accused conducted his defence in an exemplary manner and worked cooperatively with the Crownthroughout the trial process to limit the trial to live and important issues.

As I indicated in court, all counsel in this matter must becommended for their exemplary professionalism throughout. Other than brief periods of delay caused by Mr. Heintzelman’s decision tochange counsel, there are very limited periods of time for which it may be said that the accused waved the delay. The Courts’ Role in Preventing Delay [39] The Supreme Court of Canada in R. v. Cody, 2017 SCC 31 stressed that trial judges, along with the parties, play a role inminimizing delay: [38] In addition, trial judges should use their case management powers to minimize delay.

For example, before permitting anapplication to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defencecounsel to summarize the evidence it anticipates eliciting in the voir dire and, where that

summary reveals no basis upon which theapplication could succeed, dismissing the application summarily (R. v. Kutynec (1992), (ON CA), 7 O.R. (3d) 277(C.A.), at pp. 287-89; R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where anapplication is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss“applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function appliesequally to Crown applications and requests.

As a best practice, all counsel — Crown and defence — should take appropriateopportunities to ask trial judges to exercise such discretion. [39] Trial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions,such as proceeding on a documentary record alone. This responsibility is shared with counsel. [40] It is clear that in his reasons that throughout the trial process, the trial judge was alive to concerns of delay. For example, inJanuary 2021 he refused the application for a complainant to appear remotely and denied Mr.

Heintzelman’s application to appearremotely himself, “considering the length of time already required to restart the retrial”: para. 9. The Court noted that over 10 days oftrial, other matters were placed on the court list in priority to the continuation of the trial. The trial judge stated that “regrettably, thisCourt shares responsibility in the failure of the criminal justice process to facilitate the accused’s right to have his trial within areasonable time”: para. 11.

ANALYSIS [41] In my opinion, the significant weakness in the appellant’s argument overall rests with the trial judge’s alternate and clearstatement at para. 37 of his reasons, that the trial should have concluded in 12 months. Even if the appellant were successful in itssubmissions on this appeal, the total delay would be 14.5 months, for the retrial, well in excess of the 12 months that the trial judgefound the retrial should have taken to conclude. The trial judge was uniquely positioned to make this determination, having presidedover the trial and the delays that occurred.

He was well-informed of the serious nature of the allegations, which he had convicted therespondent of, as well as the issues and the conduct of the trial.

The trial judge demonstrated at the outset of his judgment that he waswell-aware that he should step back from what he called a “microscopic” analysis and adopt a bird’s eye view of the case, which in myopinion he did: Jordan at paras. 87–91. [42] I have concluded that the trial judge’s alternate conclusion that even if he were wrong on the allocation of the delay, the trialshould have concluded in 12 months, is entitled to deference and is dispositive of the appeal. The trial judge’s statement was a clear andstrongly worded statement to a reviewing court.

It is also supported by caselaw and the principle that retrials should be concluded in lesstime than first trials. [43] Accordingly, in my opinion, this appeal could be dismissed on the basis of the trial judge’s alternative conclusion alone. Given

my conclusion on the alternate findings of the trial judge, I will only briefly discuss the first three errors or issues that the appellant raises. I have, however, considered the entirety of the appellant’s submissions. Primary Errors Alleged [ 44 ] The SCC in Hanan cautioned against a “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”: R. v. Hanan , 2023 SCC 12 at para. 9 .

The Court further stressed that “All relevant circumstances should be considered to determine how delay should be apportioned among the participants”: Hanan at para. 9 , citing R. v. Boulanger , 2022 SCC 2 , at para. 8 . Adjournment for Leave to Appeal and “Appellate Delay” [ 45 ] The appellant submits that the delay in fixing dates pending the outcome of the respondent’s application for leave to appeal should count as defence delay. The appellant says this is a straightforward application of the principles in Jordan .

Alternatively, the appellant submits that if the resulting delay was not defence delay, then it must be appellate delay. [ 46 ] As previously set out, the respondent sought to adjourn the fixing of a retrial date pending the respondent’s application for leave to appeal. As I have said, leave to appeal was denied on December 5. [ 47 ] The trial judge held that the Court caused the delay by acceding to the application and by choosing not to “prioritize this retrial in favour of some matters which may have or might be set pending the leave application”: para. 24.

Prior to considering and allocating the periods of delay, the trial judge stated clearly at para. 23: [...] 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. [ 48 ] The appellant is seeking a deduction of three months from September 25 to December 19, 2019 as defence delay. [ 49 ] I agree with the respondent that the adjournments from September 25 to October 16 (approximately three weeks) were consent adjournments. Further, the period from December 13, 2019 to December 19 was already allocated to the defence: para. 25. [ 50 ] This leaves the period between October 16 and December 10, 2019.

This was the period relating to the respondent’s application for leave to appeal. In ruling on the application the Provincial Court judge (not the trial judge) ruled that the trial dates would not be fixed in order to prioritize other matters which could otherwise use the court dates. [ 51 ] I do not find the appellant’s reference to J.F. at paras. 53-55 helpful in considering this issue. Specifically, at this point, the Court of Appeal had already allowed the appeal and the Jordan clock was running on the retrial.

Although the appellant did oppose waiting to fix new trial dates, the Provincial Court judge made a decision to do so. I cannot find any error in the trial judge’s factual findings or his allocation of the leave to appeal time. Further, the trial judge was satisfied that the respondent’s behaviour during the trial was neither frivolous or deliberately aimed at causing delay: R. v. Stelwagen , 2023 ONSC 1938 at para. 79 . This decision is entitled to deference. First Set of Dates for Retrial (August – October 2020) [ 52 ] This issue arises because the parties were offered August 17 – 20, 2020 for the retrial.

The respondent was not available on those dates and October dates were fixed. [ 53 ] The appellant contends that the trial judge misapprehended the law by allocating only one month of delay as defence delay between August 20, 2020 and October 23, 2020.

The appellant submits that there is no basis in law or fact for attributing any delay to the Crown when there was “clearly and unequivocally defence delay”. [ 54 ] In considering this period of time, the trial judge stated: [26] 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. [ 55 ] In his reasons for a unanimous court in Boulanger , Justice Kasirer stated: [8] This Court did of course explain in Jordan that where the court and the Crown are ready to proceed but the defence is not, the resulting delay is attributable to the defence (para. 64). All participants in the criminal justice system, including the defence, must take a proactive approach in order to prevent unnecessary delay by targeting its root causes ( Cody , at para. 36 ).

That being said, in some cases, the circumstances may justify apportioning responsibility for delay among these participants rather than attributing the entire delay to the defence . [Emphasis added.] [ 56 ] As I have previously noted, the SCC in Hanan stressed: [9] 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 , at para. 8 ). [Emphasis added.] [ 57 ] I see no error in the allocation of time between the appellant and respondent by the trial judge on this issue.

In my opinion, the trial judge’s decision was consistent with the guidance in Hanan , which was not available at the time of his decision. Second Set of Dates for Retrial (October 2020 – January 2021) [ 58 ] The appellant submits that the trial judge made three errors with regard to this period of time: that he miscalculated the delay as two months instead of three; that he improperly limited defence delay between the adjourned trial date and the date the respondent was first available; and that he improperly considered the issue of defence waiver.

The appellant contends that this entire portion of time should therefore be attributable to defence delay. Regarding this period of time, the trial judge stated: [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. [ 59 ] The period of time between October and January is indeed three months, not two.

Nevertheless, the trial judge notes both that there were both circumstances outside the control of the respondent that affected counsel’s ability to appear in the case and that defence offered dates in as little as one month. [ 60 ] While the trial judge seemed only to apportion two months of the three-month period, his conclusions on the attribution are entitled to deference. Counsel for the respondent provided one month’s notice and offered alternate dates before the eventual rescheduling to January 2021.

In any event, applying the reasoning of the trial judge, the three-month period, whether divided equally or even two thirds of delay apportioned to the respondent, does not bring the delay under the 18-month Jordan ceiling. CONCLUSION [ 61 ] In my opinion, the trial judge’s alternate conclusion that this was a simple Provincial Court trial that should have concluded in 12 months is entitled to deference.

On that basis alone, this appeal could be dismissed. [ 62 ] Further, in my opinion, the trial judge’s conclusion on the factual background and the allocation of periods of delay display no palpable and overriding error. I can find no error of law in the application of the Jordan principles. The trial judge’s reasons are thorough and considered. Many of the arguments made before this Court were made before the trial judge and he rejected them. [ 63 ] In the result, this appeal is dismissed. “J. A. Power, J.” The Honourable Madam Justice J. A. Power