R. v. Burkhardt, 2023 NSSC 4

SUPREME COURT OF Nova Scotia Citation: R. v. Burkhardt , 2023 NSSC 4 Date: 20230104 Docket: Syd. No. 491750 Registry: Sydney Between: His Majesty the King Respondent v.

Willow Anne Burkhardt Applicant DECISION ON CHARTER APPLICATION s. 11(b) – unreasonable delay Stay of Proceedings Granted Judge: The Honourable Justice Robin Gogan Heard: December 2, 2022, in Sydney, Nova Scotia Oral Decision: December 5, 2022 Written Release: January 4, 2023 Counsel: Jennifer MacDonald, for the Applicant Darcy MacPherson and Gerald MacDonald, for the Respondent By the Court: Introduction [ 1 ] This decision is about the delay in bringing this proceeding to trial. [ 2 ] On October 25, 2018, a motor vehicle accident occurred in Coxheath, Nova Scotia, resulting in injuries to Jacob Van.

On October 26, 2018, Willow Burkhardt was charged with the offence of impaired driving causing bodily harm, contrary to s. 255(2) of the Criminal Code . On January 19, 2021, the Crown preferred another indictment, maintaining the charge of impaired driving and adding a charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Code . [ 3 ] The trial of this matter was set to begin on December 5, 2022, and forecast to conclude on December 9, 2022. The total delay is 49 months and 12 days. [ 4 ] The accused brought an application for relief pursuant to s. 11(

b) of the Canadian Charter of Rights and Freedoms .

Section 11(

b) guarantees the right of the accused to be tried within a reasonable time. The hearing of this application took place on December 2, 2022. In a brief oral decision delivered on December 5, 2022, I found a breach of the accused’s s. 11(

b) Charter right and stayed the proceedings. What follows are the reasons for that decision. Background

[ 5 ] A review of the background of this matter is necessary. What follows is a

summary of the more significant events. The record contains more detail. [ 6 ] This proceeding began when Burkhardt was charged with an offence contrary to s. 255(2) on October 26, 2018. On that day, she made her first appearance in provincial court. She was then without counsel, and requested time to find one. The matter proceeded through the provincial court in the normal course. On January 21, 2019, Burkhardt elected trial by judge and jury. A preliminary inquiry date was set for August 13, 2019. [ 7 ] Initial disclosure was provided on November 21, 2018.

Supplemental disclosure was provided on November 28, 2018, and January 15, 2019. Defence counsel advised the Crown on January 16, 2019, that the disc on which disclosure was provided was damaged and could not be read. Defence counsel followed up on disclosure on January 24, 2019. The Crown provided another disclosure disc on January 28, 2019. [ 8 ] On February 19, 2019, a focus hearing was adjourned on defence request. On February 21, 2019, defence counsel wrote to the Crown requesting additional disclosure.

There was a follow-up disclosure request on March 14, 2019, noting that the 911 call had not yet been disclosed (in addition to other disclosure requests). The Crown reply acknowledged that there was outstanding disclosure. A focus hearing took place on March 19, 2019, and continued on April 1, 2019. The defence requested that the 911 caller testify at the preliminary inquiry. I note here that the main issue emerging in the early stages was identity. [ 9 ] The preliminary inquiry was set to begin on August 13, 2019 (almost ten months post charge).

However, the Crown sought an adjournment to remedy disclosure issues, saying “ … in reviewing the matter in preparation for the preliminary it became clear that there was information that had not been made available and there was still some disclosure issues with respect to that ”. The preliminary inquiry was adjourned to September 5, 2019. [ 10 ] On that next appearance in provincial court, Burkhardt re-elected to a judge alone trial and waived the preliminary inquiry. [ 11 ] On September 23, 2019, the parties appeared in Supreme Court for the first time.

That appearance took place just under 11 months post charge. The trial was set for February 3 - 6, 2020. A pre-trial conference report form was due on or before November 1, 2019. The deadline set was later than normal in response to the parties’ request for enough time to have “ meaningful discussions ” beforehand. Resolution and pre-trial conference dates were also set.

I note here that had the matter proceeded as originally scheduled, it would have been completed in less than 16 months. [ 12 ] Following the first appearance in Supreme Court, defence counsel wrote to the Crown seeking disclosure of a number of items (some were repeated requests), including the 911 call, photographs and blood samples. The Crown provided supplementary disclosure on November 13 and 22, December 30, 2019, and January 30, 2020.

On January 4, 2020, the Crown provided notice of its intent to call two experts at trial and indicated that CVs for both would be provided. [ 13 ] The pre-trial conference form was not filed on time. Defence counsel completed the form on December 5, 2019, and Crown counsel on January 9,

Section 4 of the form deals with disclosure and asks whether disclosure is complete. If not, the form invites particulars of the disclosure issues. This

section was left blank by both parties. [ 14 ] On January 31, 2020, the parties appeared in Supreme Court. The Crown sought an adjournment of the pending trial as a result of ongoing disclosure issues. The Crown explained that the issues related to ambulance (EHS) and medical records, the audio portion of the complainant’s statement to police, as well as “ cracks ” and a “ communication breakdown ” between the traffic division of the regional police and the investigating officers.

The Crown indicated, given the “ magnitude ” of the issues, that it had asked that a senior officer be assigned to coordinate disclosure going forward. There was no defence waiver. The adjournment was granted and new trial dates set for November 30 – December 3, 2020, with a pre-trial conference on September 28, 2020. [ 15 ] It was after this adjournment that the Covid 19 pandemic struck. The Supreme Court operated under an essential services model from March 19 to June 15, 2020. Jury trials remained suspended until September 2021.

The Crown noted that there were significant consequential impacts on the operation of its office. Although not mentioned, I take notice that the same could likely be said of the police service. However, the Crown offered no evidence of any direct impact of the pandemic on this case. [ 16 ] Disclosure issues remained a problem. In the month preceding the pre-trial conference (now more than eight months post adjournment), defence counsel followed up with the Crown in the absence of any further disclosure. By this time, new Crown counsel had been assigned to the matter.

The pre-trial conference was moved from September 28, 2020, to October 26, 2020, with no impact on the trial dates. [ 17 ] The pre-trial conference proceeded on its new date (just under nine months since the adjournment of the previous trial date). Defence counsel raised the state of disclosure, having received nothing new since the adjournment, and with the new trial date one month away. In response, the Crown inquired, referring to the previous Crown counsel, “ … so, what was the nature of the disclosure he was referring to?

Do you know? ” The Crown went on to admit that he did not have the file with him in court to enable him to address the issue. There was a general discussion about the witnesses and the nature of the anticipated evidence, including opinion evidence. Crown counsel was not sure whether expert qualifications had been produced.

As a result of the apparent status, a further pre-trial conference was scheduled for November 16, 2020. [ 18 ] The following day, defence counsel emailed the Crown noting the “ fast approaching ” trial date and to “ insist upon complete disclosure ” [ 19 ] The matter returned to Chambers on November 16, 2020. The Crown had failed to docket the appearance but happened to be in Chambers on another matter. Crown counsel indicated that he had “ a different perspective ” than previous Crown counsel and had asked for the police to do further investigation.

EHS records remained outstanding, although they “ should have been in the file in the first place ”. No qualifications had been produced for the witnesses the Crown intended to offer opinion evidence. Defence counsel confirmed this appearance as the first notice of additional investigation and of the possibility of additional witnesses, and remarked that it

was “ somewhat concerning given it’s two weeks in advance of trial ” and “ if something comes of it, then I would say that’s going to impinge on trial fairness and the right to make full answer and defence given the short time frame ”. Given the status, a further appearance was scheduled prior to trial. [ 20 ] On November 24, 2020, the parties appeared to discuss status. The Crown expressed concern about readiness. It had not yet received the missing EHS records and continued to await three statements from the EHS witnesses that “ are relevant for our four-day trial ”.

The defence expressed concern about outstanding disclosure, including outstanding witness statements that might bear on the central issue of identity. The Crown indicated for the first time that it was “ considering filing a direct Indictment to include a total of three charges …” but “ hadn’t decided yet … its something we only started considering today ”. [ 21 ] I pause here to underscore that the trial was set to begin less than a week later, on November 30, 2020, a date just over 25 months post charge.

Defence counsel raised for the first time that the accused’s Charter rights might be at risk even under a presumptive ceiling. In my view, it was fair for defence counsel to raise the issue of unreasonable delay even though the matter had not yet reached 30 months from the date of the charge. At this stage, the matter had already been adjourned twice as a result of Crown disclosure deficiencies (including the preliminary hearing adjournment) and still was not ready for trial.

A further status appearance was scheduled for the following day. [ 22 ] On November 25, 2020, the trial dates were adjourned once again at the request of the Crown, on the understanding that new trial dates could be found before the end of the “ Jordan timeline ”. The Crown acknowledged the delay was theirs and said, “ now we have time and its going to be more fair than if we tried to go ahead Monday ”.

New trial dates were scheduled for February 2 – 5, 2021. [ 23 ] I pause once again, this time to address a point not raised by counsel, but important to note nonetheless. [ 24 ] The Crown appeared on November 25, 2020, with the view that they would be requesting an adjournment if new dates could be found within the “ Jordan timeline ”. When that condition was raised, there were no dates available to see a trial completed within 30 months. After a recess, proposed dates were found on the docket of an outside Justice (Lynch, J.). Counsel were both available.

But the week of trial time starting November 30, was lost, and an open block of trial time was taken by this matter, now on its third set of trial dates, and therefore not available for another matter. This, at a point when the court was trying to reschedule all matters that had been adjourned by the pandemic. [ 25 ] Beyond that, it must be noted that to get to that point, the court accommodated a move of the pre trial conference from September 28 to October 26, and then added further appearances on November 16, 24, and 25, 2020 (including two appearances on the 25 th ).

The various inefficiencies and institutional costs are obvious. [ 26 ] The matter returned for a pre-trial conference before Justice Lynch on January 13, 2021. Justice Lynch canvassed the issue of expert evidence and was advised that no CV had been produced for the medical opinion. The Crown indicated that it still had not received the anticipated statements from the EHS witnesses that had resulted in the previous adjournment.

There was no mention of an intention to prefer a new indictment, and therefore no discussion on the procedural or substantive impact of such a step. [ 27 ] Four business days later (January 19, 2021), nine days before the trial is set to begin for the third time (through no fault of the defence), and 27 months post initial charge, the Crown preferred an indictment against Burkhardt, adding one new charge, and changing the election to judge sitting with jury. In its oral submission, the Crown acknowledged not having turned its mind to the deemed election.

It is a fact however, that the Court could not have offered a jury trial on the preferred indictment by February 2, 2021. There is no evidence that the Crown brought the new indictment to the trial judge’s attention in advance of the scheduled trial. [ 28 ] On January 29, 2021, defence counsel filed an application to withdraw. On February 1, 2021, the parties appeared before Lynch, J. who granted the application. New defence counsel appeared on record the same day but was not aware that a direct indictment had been filed.

Defence counsel indicated that he was “ obviously … not in a position to request a re-election ”. He sought one week to obtain instructions from the accused on the issues of election and delay. The adjournment was granted and the third set of trial dates vacated. [ 29 ] The appearance on February 8, 2021, was set over one week as a result of a snowstorm. The matter returned on February 16, 2021. With the consent of the Crown, the accused re-elected to trial by judge alone. The record indicates Defence counsel stated that the delay was “ attributable to my client ”.

A voir dire was scheduled for January 5, 2022, with the trial to begin on May 10, 2022. The additional delay flowing from the adjournment of the trial to May 2022, was 15 months and 5 days. [ 30 ] The matter came forward on December 6, 2021, at defence counsel’s request to indicate that Burkhardt was looking for new counsel. New defence counsel was confirmed on the record by January 4, 2022, and was available for the existing trial dates (less one day). A status appearance was scheduled for February 1, 2022.

Counsel were directed to prepare to discuss the matter in detail on that date. [ 31 ] On the status date, defence counsel indicated that he had been provided with disclosure from his client and believed that he had full disclosure. However, during the discussions that followed it became apparent that some parts were missing. The Crown suggested that defence counsel inventory what he had for their review. Defence counsel agreed. [ 32 ] The matter came forward for trial on May 10, 2022. At this point, defence counsel reported he had become aware of the fact that he was missing disclosure.

He was not prepared to proceed without full disclosure. He understood that the Crown would consent to an adjournment. However, Burkhardt would not give him instructions to request an adjournment. She wanted to proceed. This resulted in a breakdown between them and counsel asked to be removed from the record. The request was granted. [ 33 ] In the wake of defence counsel’s removal, Burkhardt indicated that she was prepared to proceed without counsel and was ready to start the trial.

In response, the Crown indicated that it wanted to make an application to have counsel appointed for cross-examination of the complainant and would need an adjournment to pursue that application. The adjournment was granted. The application was scheduled for June 14, 2022, and a voir dire for July 4, 2022. The parties were offered trial dates ending July 26, 2022, but the Crown

was not available. The next available dates were December 5 – 9, 2022. These dates were accepted. [ 34 ] It is on this basis that the anticipated conclusion of the trial in this matter was December 9, 2022, resulting in a total delay of 49 months and 12 days. Issue [ 35 ] Has the delay in this case resulted in a breach of the applicant’s s. 11(

b) Charter right to be tried within a reasonable time? Position of the Parties The Applicant – Willow Burkhardt [ 36 ] The applicant says this proceeding has taken too long and has resulted in a breach of her right to be tried in a reasonable time. She says she has consistently demonstrated a sustained effort to move her case forward to trial. Nevertheless, the delay here exceeds the presumptive ceiling and the Crown has not demonstrated exceptional circumstances. She seeks a stay of the proceeding. [ 37 ] In her oral argument, the applicant urged consideration of fundamental principles.

Since being charged over 49 months ago, she has been subject to the supervision of the court, including a daily curfew and weekly reporting clauses. She has not been able to sit in the front seat of a car. She is a mother whose employment and ability to volunteer have been impacted by this protracted criminal proceeding. [ 38 ] Further, the applicant argued consideration of rights impaired by the presumptively unreasonable delay. She has borne the stress and anxiety of being subject to criminal charges for an extended period. Evidence which was once fresh and accessible is now degraded or lost.

Successive adjournments due to deficient disclosure did not cure the disclosure issues. She asks what was accomplished by the delay, given that disclosure shortfalls remain. Even on this application, the Crown brief was filed late and was only available on the morning of the hearing. [ 39 ] All things considered, the applicant argues that the conduct of this proceeding impairs the public reputation of the justice system and exposes her to a set of “second class rights”. The Crown [ 40 ] The Crown says the delay in the proceeding is reasonable.

Once defence delay is subtracted from the total delay, then the net delay falls easily below the presumptive ceiling. [ 41 ] The Crown submits that the defence delay in this case is 736 days. This includes both periods of express or implied waivers, as well as defence conduct causing delay. The Crown says the successive changes of defence counsel meant that Burkhardt was unavailable to proceed as scheduled. The Crown relies on the reasons of Moldaver, J. in Jordan , at para. 91 (a

section of the reasons dealing with matters falling below the presumptive ceiling): [91] Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin , to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s eye view of the case.

All this said, this determination is a question of fact falling well within the expertise of the trial judge ( Morin , per Sopinka- J. at pp. 791 – 92). [ 42 ] The Crown says it was ready to proceed to trial on February 1, 2021, within the presumptive ceiling. The delays from that point forward resulted from the defence not being ready to proceed because of breakdowns in the relationship between the accused and her lawyers. [ 43 ] The Crown also raises the impact of the Covid 19 global pandemic on the workload and scheduling of matters.

It says this amounts to an exceptional circumstance and must be considered. [ 44 ] The Crown says the application must be dismissed. Analysis [ 45 ] This application involves an alleged breach of the applicant’s Charter guaranteed right to be tried within a reasonable time, found in s. 11(b) : Proceedings in criminal and penal matters 11 Any person charged with an offence has the right … (

b) to be tried within a reasonable time; [ 46 ] The framework for assessing delay was transformed by the decision of the Supreme Court of Canada in R. v. Jordan , 2016 SCC 27 . The majority in Jordan underscored the fundamental importance of the right to be tried within a reasonable time given its intersection with liberty and security rights and the right to a fair trial. Moldaver, Karakastanis, and Brown, JJ, for the majority observed:

[2] … the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and families who, in many cases, have suffered tragic losses cannot move forward with their lives.

And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs. [3] An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high. [ 47 ] Jordan established a presumptive ceiling of 30 months for matters heard in superior courts.

If the total delay from the charge to the end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable. The remedy is a stay of proceedings. [ 48 ] Jordan called for an end to the “culture of complacency towards delay that has pervaded the criminal justice system”.

More is now required as the majority concluded at para. 141: Broader structural and procedural changes, in addition to day to day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required. [ 49 ] The total delay in Jordan was 49.5 months. In this case, it is 49 months and 12 days. [ 50 ] The decisions since Jordan are instructive.

Many have focused on the assessment of defence delay and the obligation of the Crown to mitigate delay. More recently, there has been the issue of pandemic delay. All of those issues are relevant in this case and area addressed below. Defence Delay [ 51 ] The Crown says there has been significant delay caused by the defence that must be subtracted from the total delay. It says a proper accounting of defence delay leads to the conclusion that this matter proceeded reasonably. [ 52 ] The issue of defence delay was addressed by the Supreme Court of Canada in R. v. Cody , 2017 SCC 31 .

There, the Court held that delay has 2 components: (1) “delay waived by the defence” (explicitly or implicitly); and (2) “delay caused solely by the defence” (para. 26). In all cases, defence waiver must be informed, clear and unequivocal. In assessing defence conduct, the goal is to prevent the defence from benefitting from its own “ delay causing action or inaction … It applies to any situation where the defence conduct has solely or directly caused the delay ” ( Jordon at para. 66; Cody at para. 28 ). The impugned conduct includes frivolous applications and requests.

It also includes periods when the court and Crown are ready to proceed, but the defence is not ( Jordan at para. 64 ; and Cody at para. 30 ). Conversely, if either the Crown or the Court is not ready, there is no defence delay. [ 53 ] Cody underscored the culture change that was first called for in Jordan . The Court urged all justice system participants to prevent and minimize delay. It cautioned that many practices that were commonplace or tolerated would no longer be viewed as compatible with the right guaranteed by s. 11(

b) of the Charter . [ 54 ] On this point, the applicant relied on two decisions of our Court of Appeal, R. v. Pierce ; R. v. Howe , 2021 NSCA 37 , and R. v. Ellis , 2020 NSCA 78 . Crown Conduct and Mitigation of Delay [ 55 ] In Ellis , one of the areas of scrutiny was Crown disclosure. There, the trial judge found that two significant events pushed the proceeding over the Jordan limits. One of those was the failure of the Crown to disclose important documents. The trial judge’s conclusions were entitled to deference. For a similar assessment of Crown disclosure see: R. v.

Foroughi-Mobarakeh , 2017 NSSC 100 . [ 56 ] It is clear that the Crown must not be complicit in defence delay and beyond that, must always seek ways to mitigate various kinds of systemic delay. This was addressed recently by Coady J. in R. v. Burgess , 2022 NSSC 335 : [12] The Court and the Crown must take steps to mitigate delay once it is apparent. The Jordan court stated at paragraph 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 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 pre-trial 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.

In this case that equates to taking steps to mitigate the effects of the pandemic on delaying the trial. [13] This issue was addressed by the Alberta Court of Appeal in R. v. Ghraizi, 2022 ABCA 96 at paragraph 12 : We agree with both the trial judge and

summary conviction appeal judge that Crown counsel illness, unavailability due to the assigned Crown’s jury trial extending, and the Covid-19 pandemic were exceptional circumstances. However, identifying an exceptional circumstance is not sufficient. As the Supreme Court of Canada instructs us in Jordan , at paras 74-75 , once the ceiling is exceeded. “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” and that “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system.”

[ 57 ] In Burgess , Justice Coady concluded that the Crown had failed to keep an eye on the delay and prioritize the case as required by Jordan : [18] The prosecution of Ms. Burgess is precisely the kind of case that drove the Jordan ceilings. It was a straightforward case without evidentiary issues. It only required one-half day of court time. The

section 11 (

b) motion was argued in 1 ½ hours. There is no reason why this trial and motion could not be heard in one day. Further, I am of the view that the trial should have proceeded on July 6, 2020; eleven months post charge. The Crown’s strict adherence to the expert notice requirements was not consistent with the principles in Jordan . The record indicates that after the July 6, 2020 trial cancellation complacency set in and nothing was done to address delay.

There were various Judges and Crowns involved throughout which resulted in a lack of continuity … [ 58 ] I find important guidance in the reasons in Burgess and the authorities relied upon by Justice Coady. COVID – 19 Pandemic Delay [ 59 ] More recently, there has been much ink dedicated to assessing pandemic delay. [ 60 ] Broadly speaking, the pandemic has been viewed as an exceptional circumstance and the associated delay classified as a discreet event permitting the relevant time period to be subtracted from the total delay.

The emerging proviso is that pandemic related events must be the cause of the delay and the Crown must address its efforts to mitigate (see R. v. Sandhu , 2022 ONSC 3910 , [2022] O.J. No. 2990, at paras 38-41 , and the cases cited therein, R. v. Langford , 2022 ONSC 4542 , [2022] O.J. No. 3566, at para. 23 , R. v. Simmons , 2020 ONSC 7209 , [2020] O.J. No. 5183 at paras 59-77 and R. v. Hinterberger , 2022 ONSC 4860 , [2022] O.J. No. 3816 at paras 48-50 and 54-59 ). [ 61 ] In this case, there was no evidence that a specific pandemic-related event caused a period of delay.

Notwithstanding, the Crown relied upon the general impact of the pandemic on its ability to operate. Its written submission on the point was brief: 18. It is important to recognize that during the period between March 15, 2020 and continuing into 2021, COVID-19 threw all scheduling of court matters into disarray. Trials were adjourned several times during this period requiring extensive work in calling off witnesses, and subpoenaing them for new trial dates, corresponding and meeting with victims to explain what was happening.

This was followed by further adjournments for the same reason so the work described above had to be repeated on every adjourned file. These were certainly exceptional times. [ 62 ] This point was repeated in oral submissions. However, no authorities were provided to support the submission that the general impact of exceptional circumstances can be considered in isolation. In my view, the authorities establish that there must be some nexus between the COVID-19 pandemic and the case specific delay being considered.

Moreover, the Crown must demonstrate its effort to mitigate that delay. [ 63 ] With all of this guidance in mind, I turn now to my findings and conclusion in the present case. General Observations - Context [ 64 ] I begin with a number of general observations about this proceeding that are important as context. [ 65 ] First, I am mindful that the entirety of this case was conducted after the decision in Jordan . The applicable principles were clearly established and the call for culture change was widely recognized. [ 66 ] Second, the total delay in this matter is lengthy – over 49 months.

And I am mindful that this quantum of delay is for a proceeding with no preliminary inquiry, its first appearance in Supreme Court in less than 12 months, and its first set of trial dates within 15 months. This efficiency notwithstanding some defence waivers and several changes in defence counsel. This matter started out with the promise of answering Jordan’s call for culture change. [ 67 ] Third, in my view, there was a reasonable opportunity to see the trial of this matter concluded before the Covid-19 pandemic.

The first trial dates were before the pandemic began to impact the operation of the Supreme Court of Nova Scotia. As we know, those dates were lost to a Crown adjournment. The second set of trial dates was assigned prior to the impact of the pandemic. This meant (in Cape Breton District scheduling) that the dates set had priority over matters adjourned as a result of the pandemic. [ 68 ] Fourth, there is no question that scheduling became more challenging after the second Crown adjournment.

Notwithstanding, the Crown was fortunate on the second adjournment as unexpected dates became available with an outside judge (one who was not part of the regular docket in the Cape Breton District). The third set of trial dates were scheduled to proceed in just under 30 months. This was the result of the system responding to the needs of a case that required priority. [ 69 ] Fifth, as in Burgess , I find that the present case is the kind of case that Jordan was designed to prevent. It is not complex in terms of issues or evidence. It is an identity case.

One recognizes that things do not always unfold as expected and unforeseen issues arise. The presumptive ceilings allow time for such things. In this case, there was a systemic disclosure issue identified early on. There was also a reassignment of Crown counsel after the first adjournment. I find that the expectations following Jordan called for a better response to these issues. A matter with disclosure issues, an adjournment, and a change of Crown counsel should attract an enhanced priority and a sense of urgency. [ 70 ] Sixth, I find that the issue of Crown disclosure unduly plagued this proceeding.

It was identified as an issue early on. The first preliminary inquiry date on August 13, 2019, was adjourned because of disclosure issues. Later, the first trial dates were adjourned with the same issues - characterized as “ cracks ” that were to be addressed going forward – but nevertheless became an overriding issue. Nothing changed by the second set of trial dates resulting in another Crown adjournment. I observe that this was not the kind of case that one would anticipate any disclosure issues let alone significant, protracted and apparently systemic issues.

[ 71 ] Finally, I note that the Crown takes the view that they were finally ready to proceed to trial by February 1, 2021, a point in time still under the presumptive ceiling. I disagree with this assessment and further believe it somewhat misses the point. The focus should be on when it should have been ready. In my view, with appropriate mitigation efforts, the Crown should have been ready to proceed no later than November 30, 2020. [ 72 ] It is with this perspective that I address some of the specific issues raised in this case and then summarize my conclusion on delay.

Specific Conclusions [ 73 ] There are three time periods that bear require specific comment based on the positions of the parties. [ 74 ] The first period is from the charge to the first set of trial dates (October 26, 2018, to February 3-6, 2020). This is a span of about 15 months. Given the nature of this case, it is reasonable to think that it could have concluded as initially scheduled. It did not, because of a Crown adjournment required by disclosure issues. I note here, as I did above, that disclosure issues first began with a damaged disc in January 2019.

Disclosure was the focus of discussion between counsel throughout this period. It resulted in the adjournment of the preliminary inquiry on August 13, 2019. The Crown then had until the first set of trial dates on February 3, 2020, (a period of almost 6 months) to remedy the issues and be ready for trial. [ 75 ] I note in this first period that the defence explicitly waived two periods of delay, totalling 63 days.

When this is subtracted from the total delay, the net delay remains significant, at just over 47 months. [ 76 ] The second period focused on by counsel began with the filing of the preferred indictment on January 19, 2021, followed shortly thereafter by the adjournment of the trial dates beginning on February 2, 2021.

It is here that the Crown took a step that bears particular scrutiny under Jordan – the decision to prefer a direct indictment with a new charge more than 26 months post charge and less than two weeks prior to trial (the third set of trial dates). [ 77 ] Decisions to prefer indictments are typically taken to ensure that matters move forward expeditiously. Here, the proceeding made its way to the Supreme Court at a reasonable pace, albeit with emerging systemic disclosure issues. This was followed by two Crown adjournments as a consequence of chronic disclosure issues.

The delay to that point was almost entirely on the Crown. [ 78 ] The step to prefer the new indictment had the potential to cause further delay given the deemed election to trial by judge and jury. There was no possibility that the court could provide a jury trial on such late notice. Moreover, the added charge needed review. The defence was entitled to a fair opportunity to review the procedural and substantive impact of the new indictment. The parties were then in the midst of preparing for the trial starting with a voir dire with imminent deadlines to file briefs.

There was not enough time to prepare for trial even if the accused wished to re-elect. In my view, the timing of the filing of the new indictment made a further adjournment inevitable. [ 79 ] The Crown’s response on this issue was forthright – counsel had not considered the election issue. The Crown view was that the added charge did not change the evidentiary landscape, nor would it extend the trial beyond what was already booked. No harm, no foul. The assumption was that the matter was scheduled to proceed by judge alone trial and that it would do so.

But once the decision was made to prefer the indictment, it required the accused to re-elect if there was to be any hope that the trial would proceed as scheduled. That did not happen. [ 80 ] On the day before the trial was set to start, there was a breakdown in the relationship between Burkhardt and her counsel. She had new defence counsel on the record on the same day previous counsel was removed. She moved very quickly to remedy her situation. Her new counsel acknowledged no awareness of the new indictment.

He needed time to obtain instructions and asked for a week. [ 81 ] I find the decision to prefer the indictment at that point in the proceeding is a risk that the Crown must bear. It could have mitigated or eliminated this risk by taking this step much earlier in the proceeding. It had already been granted two adjournments. Aside from the deemed election issue, it is reasonable that any defence counsel would need some time to absorb the procedural implications, obtain instructions, and prepare to address a new charge. In this context, the late change of defence counsel was immaterial.

There was not enough time for any defence counsel to prepare. The accused has the right to reasonable preparation time as part and parcel of the right to a fair trial. [ 82 ] I find this period is not deductible from the total delay as it is not defence delay. Under Jordan and Cody , unless the court and the Crown are ready and defence unavailable, it is not defence delay. I come to this conclusion recognizing that defence counsel expressly waived delay.

In the circumstances, I do not consider this an informed waiver, and if it was, it was with the knowledge that the trial dates were already gone and the waiver added nothing. [ 83 ] The total delay including this period remains at just over 47 months. [ 84 ] The final time period in contention was that flowing from the withdrawal of defence counsel on May 10, 2022. This resulted in a period of delay from May 13, 2022, to December 9, 2022 ( just under seven months). The Crown argued that this was defence delay. I note that the breakdown between counsel and client was about disclosure.

Defence counsel realized on the eve of trial that he did not have full disclosure. He did not want to proceed. Burkhardt insisted on proceeding. A breakdown followed. [ 85 ] To some degree, this issue was foreshadowed in previous appearances beginning with defence counsel’s first appearance on the record on January 4, 2022. That day, when the issue of disclosure arose, the Crown advised defence counsel to obtain disclosure from his predecessor.

The Court scheduled a status date for February 1, 2022, urged the Crown to assist new counsel to come up to speed as quickly as possible, and directed the parties to be prepared to discuss the matter in detail on the next appearance. [ 86 ] On the status date, defence counsel indicated that he had obtained disclosure from his client but it became apparent that he did

not have full disclosure. The Crown response was to ask for an inventory so that they would not have to recopy things defence counsel already had. Defence counsel agreed. It seems however that this agreement was not followed and the disclosure issue persisted, resulting in the solicitor-client breakdown. [ 87 ] In my view, this is defence delay that must be deducted from the total delay. Defence counsel was aware that he did not have complete disclosure and did not take steps he agreed to take on the record to remedy this situation. The Crown relied on the agreement of defence counsel to a disclosure process.

I deduct a further seven months from the total delay for a net delay of just over 40 months. [ 88 ] A net delay of 40 months is well over the Jordon ceiling and results in a presumption that the delay is unreasonable. I am not persuaded that any exceptional circumstances exist to rebut the presumption. Here, I consider the impact of the pandemic which is clearly a discreet and exceptional event. But there is no basis to say that it had any specific impact causing delay in this case. [ 89 ] As the Crown argued, the pandemic had a systemic impact on its operations.

Without a doubt, after March of 2020, the pandemic had an impact on all justice system participants. In the required assessment, the Crown must demonstrate steps taken to mitigate the impact. There was evidence that such steps were taken. But the context for these steps was that the protracted delays to that point were the responsibility of the Crown an not the result of the pandemic. This is a case that should have concluded before the pandemic struck. [ 90 ] In the end, I find that the delay in this case was not the result of the pandemic or defence delay.

It was the result of a combination of chronic disclosure issues and the late filing of a direct indictment. The cumulative impact of these issues resulted in unreasonable delay. Conclusion [ 91 ] As a result of the foregoing, I conclude that the delay in this proceeding is unreasonable and a breach of Burkhardt’s s. 11(

b) Charter right. [ 92 ] A stay of proceedings is the remedy and is entered on the on the record. Gogan, J.