Alan Teck Meng Lai Appellant v. Her Majesty The Queen, 2021 SCC 52

SUPREME COURT OF CANADA Citation: R. v. Lai, 2021 SCC 52 Appeal Heard: December 8, 2021 Judgment Rendered: December 8, 2021 Docket: 39577 Between: Alan Teck Meng Lai Appellant and Her Majesty The Queen Respondent Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. Judgment Read By: (paras. 1 to 5) Moldaver J. Majority: Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. Dissent: Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Alan Teck Meng Lai Appellant v. Her Majesty The Queen Respondent Indexed as: R. v. Lai 2021 SCC 52 File No.: 39577 . 2021 : December 8 . Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for british columbia Constitutional law — Charter of Rights — Right to be tried within reasonable time — Transitional exceptional circumstance — Assessment of delay caused by re-election as of right of another mode of trial — Accused applying for stay of proceedings on basis that right to be tried within reasonable time guaranteed by s. 11(

b) of Canadian Charter of Rights and Freedoms infringed — Trial judge finding that total delay exceeded Jordan ceiling but was justified by parties’ reliance on state of law pre-Jordan and dismissing application — Accused convicted of sexual assault causing bodily harm and administering stupefying drug — Majority of Court of

Appeal concluding that trial judge erroneously characterized and deducted as discrete exceptional circumstance delay occasioned by accused’s re-election of another mode of trial that caused loss of trial date but upholding dismissal of stay application on basis of transitional exceptional circumstance — Convictions upheld. Cases Cited Referred to: R. v. Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659 . APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Willcock and Butler JJ.A.), 2021 BCCA 105 , 402 C.C.C. (3d) 1 , 466 D.L.R. (4th) 421 , 482 C.R.R. (2d) 315 , [2021] B.C.J.

No. 441 (QL) , 2021 CarswellBC 642 (WL) , affirming the convictions entered by Schultes J., 2018 BCSC 1838 , [2018] B.C.J. No. 3499 (QL), 2018 CarswellBC 2877 (WL). Appeal dismissed, Côté J. dissenting . Eric Purtzki and Michael Sobkin , for the appellant. Lauren A. Chu and Lesley A. Ruzicka , Q.C. , for the respondent. The judgment of the Court was delivered orally by [ 1 ] Moldaver J. — R. v.

Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659 , at para. 32 , states as follows: Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted , may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. [Emphasis in original.] [ 2 ] In this case, the appellant, Mr. Lai, had the statutory right to re-elect when he did — but he waited 15 months to re-elect after his trial dates were set in Provincial Court.

This was despite being informed by Crown counsel that he could preserve his trial dates by re-electing earlier. Nonetheless, he waited 7 months after that warning to exercise his right to re-elect. This conduct had the direct result of losing the trial dates that were set in Provincial Court and causing an additional delay of 13 months. [ 3 ] The trial judge rejected Mr. Lai’s explanation regarding the re-election ( 2018 BCSC 867 ). Based on the trial judge’s own findings and conclusions, the re-election was not done legitimately to respond to the charges.

To that extent, the trial judge erred in not characterizing the delay as defence delay and deducting it as such. [ 4 ] For these reasons, a majority of the Court would dismiss the appeal. [ 5 ] Justice Côté is dissenting . She would have allowed the appeal substantially for the reasons of Butler J.A. Judgment accordingly . Solicitors for the appellant : Melville Law Chambers , Vancouver; Michael Sobkin, Ottawa . Solicitor for the respondent : Attorney General of British Columbia, Vancouver.