R v Boehmer, 2019 SKCA 74

Court of Appeal for Saskatchewan Docket: CACR3135 Citation: R v Boehmer , 2019 SKCA 74 Date: 2019-08-02 Between: Todd Jeff Boehmer Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Tholl On Appeal From: 2017 SKQB 328 , Regina Appeal Heard: June 14, 2019 Counsel: Nicholas Robinson for the Appellant Pouria Tabrizi-Reardigan for the Respondent Leurer J.A. I.

Introduction [ 1 ] The appellant, Todd Jeff Boehmer, was convicted after trial before a Court of Queen’s Bench judge with driving while his blood alcohol was over the permissible limit, contrary to ss. 255(1) and 253(1) (

b) of the Criminal Code . [ 2 ] After the conviction was entered, Mr. Boehmer made an application for a stay of proceedings on the ground that his right to a trial within a reasonable period of time, guaranteed by s. 11(

b) of the Charter , had been violated. Mr. Boehmer’s Charter application was subsequently dismissed: R v Boehmer , 2017 SKQB 328 [ Delay Decision ]. [ 3 ] Mr. Boehmer now appeals his conviction. He takes issue with the Delay Decision , having abandoned other grounds of appeal relating to his conviction and sentence. For the reasons that follow, I would dismiss Mr. Boehmer’s appeal. II. Background A. The charge [ 4 ] On July 21, 2012, Mr. Boehmer was pulled over after two police officers witnessed him ignore a stop sign. Conversations between Mr. Boehmer and the police officers led to Mr.

Boehmer undergoing breath tests, resulting in readings of 170mg/100 mL and 150 mg/100mL. [ 5 ] An information was sworn on July 30, 2012, charging Mr. Boehmer with impaired driving, contrary to s. 253(1) (

a) of the Criminal Code , and with driving with blood alcohol over the permissible limit, contrary to s. 253(1) (

b) of the Criminal Code . B. Proceedings up to trial [ 6 ] Mr. Boehmer elected to be tried by a Court of Queen’s Bench judge sitting without a jury and requested a preliminary inquiry. On June 5, 2013, at the conclusion of the preliminary inquiry, Mr. Boehmer was committed to stand trial. [ 7 ] The Crown filed a two count indictment on June 6, 2013. The charges were set down for trial to commence on January 15, 2014. Throughout this process, Mr. Boehmer was represented by counsel [counsel #1]. [ 8 ] On the day Mr.

Boehmer’s trial was scheduled to proceed, counsel #1 applied to withdraw and requested an adjournment of the trial. Counsel #1 advised that he was subject to an order of the Law Society of Saskatchewan suspending his right to practice law effective February 15, 2014. The adjournment request was granted over the opposition of the Crown. [ 9 ] Mr. Boehmer retained new counsel [counsel #2], who made his first appearance on January 31, 2014, and the process to assign trial dates was re-initiated. In the ensuing months, the matter was adjourned repeatedly at the request of counsel #2.

The last of these adjournment requests was opposed by the Crown. On June 5, 2014, the Crown received a letter from counsel #2 seeking further disclosure, including records in relation to the breath machine used to take the breath samples. This disclosure was provided to counsel #2 on July 17, 2014. [ 10 ] On December 19, 2014, counsel #2 applied for, and was granted, leave to withdraw. At Mr. Boehmer’s request, his case was adjourned to January 23, 2015. [ 11 ] Mr. Boehmer again retained new counsel [counsel #3] who appeared on his behalf on January 23, 2015, but requested the

matter be adjourned to February 27, 2015. On February 27, 2015, the Court offered trial dates in March of 2015. Counsel #3 was not available those dates, and as a result the trial was set down to commence on September 9, 2015. [ 12 ] On June 26, 2015, counsel #3 requested, and was granted, leave to withdraw. On July 10, 2015, the Court appointed counsel for Mr. Boehmer [counsel #4]. At the request of counsel #4, the dates set for trial in September 2015 were vacated, and the matter was set down for trial to commence on December 9, 2015. C. The trial and conviction [ 13 ] The trial began on December 9, 2015.

At the conclusion of the Crown’s case, around noon of that day, the Crown entered a stay of proceedings respecting the impaired driving charge. The Crown’s case was anchored in the application of s. 258(1) (

c) of the Criminal Code , which allows for the admission of the breath sample certificate as conclusive proof that an accused’s blood-alcohol concentration at the time the breath samples were obtained was the same as it was at the time of driving if certain conditions are met. One of these conditions is that the breath samples be taken “as soon as practicable”. No evidence was called on behalf of Mr. Boehmer, but counsel #4 stated he was not ready to proceed to argument and requested an adjournment to prepare Charter arguments relating to the timing of the breath samples given by Mr.

Boehmer. [ 14 ] As a result of the defence’s request, the trial was adjourned to February 29, 2016, to allow time for counsel #4 to file written argument and to select a date for oral argument. On February 29, 2016, the matter was set down for oral argument on June 9, 2016. It was then set over to June 10, 2016. [ 15 ] Mr. Boehmer did not attend in court on June 10, 2016, and it became necessary to set a new date for argument. The Court and Crown were available on September 30, 2016, but counsel #4 was not.

Final argument was eventually set for December 2, 2016. [ 16 ] The trial concluded with oral argument on December 2, 2016. When oral argument was made, Mr. Boehmer abandoned the Charter application that had prompted his adjournment request the previous year. Instead, Mr. Boehmer focused his argument on the statutory requirement that the breath samples be taken “as soon as practicable”. [ 17 ] The trial judge rendered an oral decision on April 20, 2017. The trial judge concluded that all preconditions to the application of s. 258(1) (

c) of the Criminal Code had been met, including the requirement that the samples were taken “as soon as practicable”. On this basis, together with the admission of the Certificate of a Qualified Technician, the trial judge found Mr. Boehmer guilty of operating a motor vehicle with a blood-alcohol content exceeding the legal limit. D.

The Charter delay application and Delay Decision [ 18 ] After the trial judge rendered his decision, counsel #4 advised he was not prepared to proceed to sentencing and was contemplating a Charter delay application on the basis of the decision of the Supreme Court of Canada in R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ], which had been handed down on July 8, 2016. The trial judge adjourned the matter to May 2, 2017. [ 19 ] Mr. Boehmer filed the delay application on May 2, 2017. He also indicated he would be asking the trial judge to recuse himself.

However, counsel #4 did not have the recusal application ready. This latter application was later filed, and argued on June 8, 2017, leading the trial judge to recuse himself and have another judge hear the delay application [application judge]. [ 20 ] The delay application proceeded on the basis of an agreed statement of facts and was argued on July 21, 2017. The application judge dismissed Mr.

Boehmer’s application ( Delay Decision at para 33). [ 21 ] The parties had agreed that, for the purposes of applying Jordan , the relevant period of time was that between the swearing of the information (July 30, 2012) and the date closing argument was made (December 2, 2016). This period totalled 1,587 days or approximately 53 months. The application judge noted that, before giving any consideration to the delay flowing from the withdrawals of counsel #1, counsel #2 and counsel #3, 522 days of this delay were expressly waived. This left the delay at a total of 1,065 days, or approximately 35.5 months.

The application judge observed that this delay “is above the presumptive ceiling stated in Jordan ” (at para 24 ). The application judge concluded that the withdrawal by counsel #1 was an exceptional circumstance within the Jordan framework. The application judge further concluded that a period of delay associated with the actions of counsel #2 and counsel #3 could be considered defence delay or an exceptional circumstance. All of this took the calculation of time to trial well below the presumptive ceiling of 30 months referenced in Jordan . On these bases, Mr. Boehmer’s s. 11(

b) application was dismissed. E. Parties’ positions [ 22 ] Mr. Boehmer’s position is that the application judge erred in his analysis under s. 11(

b) and a stay of proceedings should have been entered on this basis. [ 23 ] The Crown’s position is that the reasons of the application judge evince no error and that the appeal should be dismissed. III. Issue [ 24 ] The sole issue in this appeal is this: Did the application judge err in law by concluding that Mr. Boehmer had failed to establish a violation of his Charter right to be tried within a reasonable time? IV. Analysis

[ 25 ] Mr. Boehmer takes no issue with the application judge’s calculation that, before giving consideration to the delay flowing from the withdrawals of Mr. Boehmer’s first three counsel, 522 of the 1,587 days between the swearing of the information and the conclusion of trial was properly counted as defence delay. Mr. Boehmer’s appeal therefore rests on whether the total remaining delay of 1,065 days, or approximately 35.5 months, constituted undue delay. [ 26 ] Mr. Boehmer makes arguments falling under two broad heads. A. Alleged misapplication of the Jordan framework [ 27 ] First, Mr.

Boehmer argues that the application judge misapplied the Jordan framework by failing to find the “discrete” events that would justify delay above the ceiling prescribed in Jordan . Mr. Boehmer’s argument is built on two steps. [ 28 ] Relying on Jordan , the first step in Mr.

Boehmer’s argument (which is not contested by the Crown) is that there is a 30-month “ceiling” for cases in a superior court beyond which delay becomes presumptively unreasonable ( Jordan at para 105 ): [105] ... • Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable. [ 29 ] I pause to observe that, in the terminology of Jordan , the “period of delay caused by any discrete exceptional circumstances must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded” (at para 75).

Therefore, whenever the concept of the Jordan “ceiling” is discussed, it must be understood to represent the period of time that is determined by performing a mathematical calculation neatly captured by E.A.

Gillese J.A. in R v Coulter , 2016 ONCA 704 , 133 OR (3d) 433 [ Coulter ]: [34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). [35] Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstance s ( Jordan , para. 47 ).

If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). [38] Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ). [40] If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). (Emphasis in original) [ 30 ] For the second step of his argument, Mr.

Boehmer points to R v Williamson , 2016 SCC 28 , [2016] 1 SCR 741 [ Williamson ]. Williamson is said to add further definition to what constitutes an “exceptional circumstance” for the purposes of the Jordan analysis: [23] Subtracting one and a half months of defence delay leaves a total delay of 34 months. This is still above the 30-month ceiling established in Jordan for cases going to trial in the superior court. The delay is therefore presumptively unreasonable. The Crown bears the onus of showing that the delay is reasonable, having regard to the presence of exceptional circumstances.

The record does not disclose any delay caused by discrete, exceptional circumstances in this case , and the case does not remotely qualify as exceptionally complex. (Emphasis added) [ 31 ] Mr. Boehmer alleges the application judge fell into error by failing to tie the withdrawals of counsel #1, counsel #2 and counsel #3 to any specific delay in his case. Instead, the application judge is said to have identified the withdrawals only as a “general” circumstance.

This argument is largely grounded in the following paragraph of the application judge’s decision: [ 32 ] In these circumstances of successive legal counsel, the Crown understandably would not inquire into the reasons why each counsel sought leave to withdrawn [ sic ]. Similarly the Crown would have been reluctant to argue against Mr. Boehmer’s right to his choice of legal counsel. In my view, engaging four successive legal counsel is, in itself, an exceptional circumstance given the unexceptional nature

of the charges . Axiomatically, processing a criminal charge when four successive lawyers have been retained, each having to be instructed by the accused, and each having to familiarize himself with the file and to accommodate new dates, militates against a speedy trial. (Emphasis added) [32] Mr. Boehmer submits that the withdrawal of counsel #1 was outside of his control.

In his factum, he asserts that the subsequent delays that followed were “partly institutional delay due to scarcity of precious trial time availability in the Court calendar” and that the application judge made no attempt to allocate periods of time where delay after the withdrawals of his counsel was attributable to institutional delay. He says (correctly) that Jordan requires a judge to do a mathematical calculation, identifying the specific number of days in issue. He says this is absent in the Delay Decision in relation to the delay flowing from the withdrawal of his counsel.

From all of this, he says that the reasons of the application judge “were inadequate and do not support the decision reached”. [ 33 ] In my respectful view, Mr. Boehmer takes paragraph 32 of the Delay Decision out of context. This paragraph is the conclusion of the application judge’s analysis of the delay that flowed from the withdrawal of counsel. The paragraph must be read in light of the paragraphs that precede it.

Two things are apparent when paragraph 32 is read in the context of the Delay Decision as a whole. [ 34 ] First, the application judge properly oriented himself to the principles set out in Jordan , stating as follows: [24] My calculation of lapse from time of charge to end of trial, less delay clearly attributable to defence delay, results in 35.5 months of delay. This delay is above the presumptive ceiling stated in Jordan . Necessarily, then, within the contextually [ sic ] transitional rules, the Crown must satisfy the court that exceptional circumstances have occasioned this otherwise unacceptable delay.

In Jordan , the court explained exceptional circumstances at para. 69 as circumstances lying outside the Crown’s control in the sense they “are reasonably unforeseen or reasonably unavoidable” and respecting which “Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.” The court continued its description of what circumstances should be considered exceptional: [71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(

b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [25] In this instance, only the first category of events is operative, the second category being specific to criminal trials involving complex charges.

Respecting the first category, “exceptional events,” the court offered the following guidance: [73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. [74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution.

For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. [75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. ... (Emphasis added) [ 35 ] From these passages, I am convinced that the trial judge understood that for circumstances to qualify as “exceptional”, they must be discrete, in the sense of being identifiable and particular, and must also be either reasonably unforeseen or reasonably unavoidable and not subject to reasonable remediation by the Crown.

As a result, I respectfully reject the suggestion by Mr. Boehmer that the application judge erred in law by failing to identify the need to do a mathematical calculation required by the Jordan legal framework. [ 36 ] I also respectfully reject any suggestion that the application judge erred in law by applying different legal principles than he overtly articulated by simply homogenizing the three withdrawals of legal counsel.

Rather, the application judge turned his mind to the consequences that followed each of the withdrawals of counsel: [26] Relying on my “good sense,” as directed by the Supreme Court, I find that the Crown has discharged its obligation of satisfying me that instances of exceptional circumstances augur against a finding that Mr. Boehmer’s s. 11(

b) Charter rights were infringed. I find that the Crown made “reasonable efforts...to conclude the trial under the ceiling.” (Emphasis added) [ 37 ] The reference to the “ instances ” of exceptional circumstances illustrates that the application judge understood the need to consider the delay that flowed from each of the three withdrawals of counsel within the Jordan framework.

The application judge then went on to consider the specific events that precipitated the delay of the trial: [28] As explained in the agreed statement of facts, [counsel #1] was involved in Law Society matters and was facing an imminent suspension. The Crown had its witnesses ready, indicating to me that [counsel #1] had not earlier advised the Crown of his unavailability. Consequently, the delay of trial must have been “unforeseen” to the Crown. The Crown opposed the adjournment. Defence did not expressly waive delay. Whether or not Mr.

Boehmer had any forewarning of [counsel #1’s] situation is unknown to the court. Clearly, though, no criticism can be laid upon the Crown or the court for the abandonment of the trial date. Had matters progressed as the Crown had wished, the trial would have been concluded by January 2014. Instead, the matter was returned to pre-trial.

[29] [Counsel #2], or his agent, appeared at 11 pre-trial conferences until he, too, sought leave to withdraw on December 19, 2014, nearly one year after the original trial date. On the file on each of the dates of the pre-trial conferences (except June 6, 2014 when the matter was on the pre-trial conference list “in error”), are endorsements that consecutive adjournments were requested by the defence. Expressly stated on the court’s endorsement on November 21, 2014 is the Crown’s opposition to one adjournment.

Whether this period of time, from the first re-convened pre-trial conference on January 31, 2014 to the last pre-trial conference with [counsel #2] as counsel on December 19, 2014 (nearly one year), is considered defence delay or exceptional circumstances, I find that (in the words of Jordan ) the Crown made “reasonable efforts to conclude the trial under the ceiling.” [30] Why [counsel #2] sought leave to withdraw after being retained for approximately one year remains unknown to the court and not explained by Mr.

Boehmer (as is his prerogative). [Counsel #3]’s attendance at the pre-trial conference on January 23, 2015 is noted, but the matter was adjourned, again “at the request of defence.” A month later, the pre-trial conference is resumed and a trial date is set for September 9, 2015 (with defence waiving delay as previously explained from an earlier available trial date of March 25 and 26, 2015). However, before the trial date, [counsel #3] requested leave to withdraw.

Again, the court is unaware of the reasons why [counsel #3] sought to withdraw but again, as with [counsel #2]’s withdrawal, no criticism can be levelled against the Crown. As concerns the Crown, these must have been unforeseeable and unavoidable developments in the case. [31] As stated previously, I find total delay, allowing Mr. Boehmer the most favourable allowance for expressly waived delay, is 35.5 months. However, I find that several more months must be allocated to the “exceptional circumstances” of this case. Good sense says this must be the result when the first of Mr.

Boehmer’s legal counsel sought an adjournment of the preliminary hearing on the date scheduled and a further adjournment (opposed) on the date of trial. Then follows his second engaged legal counsel’s withdrawal after one year of pre-trial conferences adjourned on request of defence. Then, after this third engaged legal counsel seeks leave to withdraw, the court entertains an application for, and appoints, court-appointed counsel who cannot accommodate the trial date set by his predecessor counsel. [ 38 ] Importantly, at no point does Mr.

Boehmer suggest that the Crown could have anticipated or planned for any of the three withdrawals of his counsel or that some of the delay that flowed from these withdrawals could have been mitigated by the Crown. Therefore, Mr. Boehmer also does not suggest that it was inappropriate to consider the withdrawal of counsel #1 as an exceptional circumstance justifying additional delay. In this light, it is appropriate to consider the specifics of the delay that flowed from this event. [ 39 ] The trial was originally scheduled for January 15, 2014.

When counsel #1 withdrew, the matter was set over to the first available pretrial conference dated on January 31, 2014. Counsel #2 was retained and appeared at that pretrial conference. Between that date, and the withdrawal of counsel #2 on December 19, 2014, the matter was adjourned repeatedly at the request of counsel #2. The last of these adjournment requests was opposed by the Crown. The total time between January 15, 2014 and December 19, 2014 was 338 days, or approximately 11 months.

Except for a six-week period when the Crown dealt with a disclosure request made by counsel #2, the delay in fixing a new trial date can only be laid at the feet of Mr. Boehmer or his counsel.

Therefore, without even considering any of the delay that followed the withdrawal of counsel #2, the total delay attributable to the exceptional circumstance of the withdrawal of counsel #1 brought the total time to trial well below the ceiling established in Jordan . [ 40 ] When paragraph 32 of the Delay Decision is understood in its overall context, there is no basis for the suggestion that somehow the application judge erred in law because he treated the withdrawals of counsel as general, rather than specific, discrete events. [ 41 ] I pause to make two final comments about the application judge’s overall approach in this case.

First, the application judge stated that he was applying the transitional rules in Jordan , beginning his analysis by indicating that to “engage Jordan and its transitional rules, the court must necessarily complete a mathematical calculation” (at para 14). As I will discuss in relation to the second set of arguments raised by Mr. Boehmer, the Jordan framework applies to cases already in the system when the decision in Jordan was released, subject to only two qualifications ( Jordan at para 95 ). In the end, the fact that Mr.

Boehmer’s case was “in the system” is irrelevant to the disposition of his appeal, because the remaining delay, after account was made for defence delay and delay attributable to exceptional circumstances, was by any measure well below the Jordan -prescribed ceiling. [ 42 ] Second, respectfully, the application judge should have more tightly analyzed the delays that followed from the various withdrawals of defence counsel and discerned what aspects of the delay were properly characterized as defence delay.

As Coulter so nicely summarizes, the Jordan framework requires a judge to assess defence-caused delay and delay arising from exceptional circumstances as distinct steps in the analysis. The framework operates differently at the two stages, most obviously because the Crown has the burden to establish the presence of exceptional circumstances once the net delay exceeds the ceiling. It follows that a court performing a Jordan analysis should specifically calculate net delay and remaining delay (to employ again the terminology of Coulter ). [ 43 ] Mr.

Boehmer attempted to make something of the fact that, in paragraph 29 of the Delay Decision (quoted above), the application judge allowed for the possibility that delay flowing from the actions of counsel #2 and counsel #3 might count either as defence delay or be considered the product of an exceptional circumstance. Jordan recognizes that defence delay can involve a situation where the accused’s acts directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial (at para 63).

One specific example given in Jordan is “if the court and the Crown are ready to proceed, but the defence is not” (at para 64). Leaving aside the six-week period where disclosure was an issue, it is not unreasonable to view the delay that followed the withdrawal of counsel #1, and then the subsequent adjournments requested by counsel #2, as defence delay.

In the context of this case, while the application judge might have reasonably attributed certain specific aspects of the delay as either defence delay, or as being reasonably unavoidable delay caused by exceptional circumstances, the better practice would have been for the application judge to have determined for every period of time which, if either, of the two applied. Ultimately, this of no significance in this case as no matter how the delay was categorized, the final calculation of remaining delay fell below the Jordan ceiling.

The application judge’s analysis shows that the additional delay that followed from the withdrawal of counsel #1 would be enough to bring the delay in the case well below the time limits prescribed in Jordan . [ 44 ] I therefore respectfully reject Mr. Boehmer’s argument that the application judge misapplied the Jordan framework by failing

to find the “discrete” events that would justify delay above the presumptive 30-month ceiling. B. Alleged misapplication of transitional framework [45] Mr. Boehmer’s second group of arguments is based on how the application judge dealt with the framework set out in Jordanfor handling transitional cases. Mr. Boehmer argues that the transitional rules required the application judge to undertake an analysis ofthe delay in this case in accordance with the principles set out in R v Morin, (SCC), [1992] 1 SCR 771 [Morin].

Mr.Boehmer further argues that, when the principles set out in Morin are applied and, in particular, when consideration is given to theprejudice he alleges to have suffered because of the time his case took to get to trial, the delay in this case was unreasonable. [46] Respectfully, Mr. Boehmer misapprehends the direction given in Jordan with respect to transitional cases. The majorityrecognized that a “judicial change in the law is presumed to operate retroactively and apply to past conduct” (at para 93, quoting Canada(Attorney General) v Hislop, 2007 SCC 10 at para 84, [2007] 1 SCR 429).

The majority also recognized the possibility that this couldcause unfairness and therefore a period of adjustment was required. For this reason, the majority directed that the “new framework,including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications” (at para 95).

The twoqualifications are “for cases in which the delay exceeds the ceiling” (at para 96) and for cases when the delay falls below the ceiling.Jordan contemplates that the transitional rules operate somewhat differently, depending on which qualification is applicable. [47] Jordan uses somewhat varying language to define which of the qualifications is applicable. In places, the majority judgmentsimply describes the division line between these two situations by reference to the overall “ceiling” (e.g., at para 96).

This would seem tocontemplate that it is appropriate to first perform the calculation of total delay minus both defence delay and delay attributable toexceptional circumstances in keeping with the direction given in paragraph 75 of Jordan. In other places, the majority judgment describesthe line differently. For example, in paragraph 99, the majority refers to the line being established by the calculation of “total delay (minusdefence delay)”.

The difference between these two descriptions of the dividing line is that the latter contains no allowance forconsideration of delay attributable to exceptional circumstances before a determination is made as to which qualification applies. [48] In my respectful view, the line that establishes which of the two Jordan qualifications applies is drawn when a calculation ismade as to the “remaining delay” as that phrase is used in Coulter (i.e., total delay, minus both defence delay and delay attributable toexceptional circumstances).

I reach this conclusion for several reasons. [49] Jordan directs that presumptively the new framework applies. It seems inconsistent with this that only part of the frameworkwould apply before the transition rules are considered. Indeed, the majority introduced its discussion of the transitional rules by statingthat “(t)he new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications” (atpara 96, emphasis added).

The majority also took care to explain that two specific criteria associated with the new framework would notapply in the transitional context; that is, defence initiative and whether the time the case has taken markedly exceeds what was reasonablyrequired must be applied “contextually”. It would be unusual if the majority described this qualification but left to implication the notionthat delay attributable to exceptional circumstances should be set to the side.

Finally, I also see nothing in the policy rationale for treatingtransitional cases differently that would explain why only part of the Jordan framework would be considered before the appropriatequalification is selected. [50] I conclude from this that, when selecting the appropriate qualification, it is appropriate to determine if the delay would beconsidered unreasonable considering total delay minus both defence delay and delay attributable to exceptional circumstances.

In thiscase, because the result of this calculation is less than 30 months, it is appropriate to examine how the new Jordan framework applies tocases that fall below the ceiling and then also the qualifications described in Jordan to the operation of the framework. [51] Jordan leaves open the possibility that cases that fall below the ceiling it prescribed could still be dismissed for delay in rarecircumstances.

The majority stated as follows: [48] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable toexceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. Todo so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2)the case took markedly longer than it reasonably should have.

We expect stays beneath the ceiling to be rare, and limited to clear cases. (Emphasis in original) [52] For transitional cases like this one that fall below the calculated ceiling, Jordan directs as follows: [99] … For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what wasreasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically,the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision.

Since defenceinitiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release ofthis decision. However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedlyexceeds what was reasonably required.

The trial judge must also still consider action or inaction by the accused that may be inconsistentwith a desire for a timely trial (Morin, at p. 802). [100] Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction underthe Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements ofthe case for cases currently in the system. [53] A similar argument to that made by Mr. Boehmer in this case (i.e., that the Morin criteria apply) was mounted by the accused

in R v K.N. , 2018 BCCA 246 , 362 CCC (3d) 288 [ K.N. ]. As here, in K.N. the total delay fell below the presumptive ceiling set in Jordan , although in K.N . the charges were tried in Provincial Court and the presumptive ceiling was therefore 18 months. Justice Fenlon held that “there is little room left for prejudice as an express analytical factor in a transitional case falling below the ceiling” (at para 34). She gave three reasons for reaching this conclusion, which, in my view, are persuasive: [35] First, the Jordan framework is designed to do away with prejudice as an express factor in assessing delay.

While prejudice had become an important factor under Morin , the majority in Jordan observed it had also become one of the most fraught areas in s. 11(

b) jurisprudence: confusing, hard to prove, and highly subjective (at paras. 33 and 34). The new framework addresses these issues, not by ignoring prejudice, but by creating a presumption that accused persons have suffered prejudice once the ceilings have been breached: Jordan at para. 54 . [36] Second, Jordan limits consideration of prejudice as an express analytical factor to transitional cases exceeding the ceiling , for example, where the Crown has relied on the absence of prejudice in managing a particular case in accordance with the pre- Jordan framework.

Jordan makes no reference to use of prejudice in cases falling below the ceiling. That said, it accounts for prejudice in under- the-ceiling cases through assessing “defence initiative” and “whether the case took markedly longer than it reasonably should have”. [37] Third, and most significantly, the rationale for applying the Jordan framework contextually and flexibly to cases already in the system is that “it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice”: Jordan at para. 94 .

In other words, it is the reliance of counsel on the regime in place before Jordan that underpins the transitional contextual flexibility. (Emphasis in original) [ 54 ] As I interpret Jordan , for transitional cases where the remaining delay (i.e., total delay minus defence delay and delay attributable to exceptional circumstances), to again use the terminology proposed in Coulter , falls below the ceiling: (

a) an accused must show that “ the time the case has taken markedly exceeds what was reasonably required ” ( Jordan at para 99 , emphasis added); (

b) defence initiative still plays a role in the analysis: (

i) if present, defence initiative can assist the defence in establishing markedly excessive delay; (ii) the court is to “consider action or inaction by the accused that may be inconsistent with a desire for a timely trial” (at para 99); and (

c) in assessing whether the time the case has taken markedly exceeds what was reasonably required, acceptable institutional delay under the Morin framework is relevant. [ 55 ] None of this formed part of the application judge’s analysis in this case. However, this is hardly surprising given that Mr. Boehmer made no attempt to meet the onus described in Jordan to show that the time his case took markedly exceeded what was reasonably required to bring his case to trial. [ 56 ] Still, Mr.

Boehmer pointed to a passage in R v Klassen , 2018 ABCA 258 at para 66 , 72 Alta LR (6th) 282 [ Klassen ], as support for the proposition that the Jordan framework is not intended to justify delays that would themselves be found unreasonable under the Morin framework. Klassen was a case where the delay exceeded the presumptive ceiling as was R v Cody , 2017 SCC 31 , [2017] 1 SCR 659, the authority referred to at paragraph 66 of Klassen . The paragraph cited by Mr.

Boehmer is relevant where the Crown is seeking to rely on the transitional circumstance exception to justify delay that exceeds the presumptive ceiling, not cases such as this where delay falls below the presumptive ceiling. [ 57 ] Based on all of this, considering this case in the context of the transitional framework prescribed in Jordan , I see no basis for Mr. Boehmer’s claim that there has been unreasonable delay. [ 58 ] Even if the Morin framework was applicable, which it is not, I would have concluded that the time taken for Mr.

Boehmer’s case to come to trial would not have been determined to be unreasonable under that framework. The simple answer to all of Mr. Boehmer’s arguments falling under this broad rubric is that there is no evidence he suffered actual prejudice because of the time it took for his case to go to trial. Although Mr. Boehmer referred to difficulties that some witnesses had in remembering details of the circumstances surrounding the police stop and administration of the breath samples, none of these details related to the substantive issues at play in the trial. Mr.

Boehmer referred to no other form of prejudice, such as restrictions on his liberty, caused by the delay in his case. [ 59 ] I would, in the end, reject all of Mr. Boehmer’s arguments premised on the proposition that the proper application of the rules applicable to transitional cases would lead to the conclusion that his trial was unduly delayed. V. Conclusion [ 60 ] For the reasons I have given, I conclude that Mr. Boehmer’s right to a trial within a reasonable time was not violated. I would dismiss Mr. Boehmer’s appeal. “Leurer J.A.” Leurer J.A. I concur. “Richards C.J.S.” Richards C.J.S.

I concur. “Tholl J.A.”

Tholl J.A.