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CONSTITUTIONAL ISSUES - Legal rights - Trial within a reasonable time

Monday, September 23, 2019 @ 9:28 AM  

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Appeal by the accused from conviction for driving with an excessive blood alcohol level. The appellant argued the trial judge erred in not granting a stay due to unreasonable delay. The appellant was charged in July 2012. The trial was to commence in January 2014. The appellant’s counsel withdrew on the first day of trial due and requested an adjournment of the trial. The appellant retained two other lawyers. Both counsel subsequently withdrew resulting in further adjournments. In July 2015, the Court appointed counsel for the appellant. At the request of the fourth counsel, the trial was set down for December 2015. The trial began on December 9, 2015. Trial was adjourned to February 2016, to allow time for defence counsel to file written Charter arguments relating to the timing of the breath samples. The trial concluded in December 2016. When oral argument was made, the appellant abandoned the Charter application that prompted his adjournment request the previous year. The trial judge rendered an oral decision in April 2017.  The appellant filed the delay application after the trial judge rendered his decision. The parties agreed that the relevant period of time was that between the swearing of the information in July 2012 and the date closing argument was made in December 2016. This period totalled 1,587 days. The application judge found that 522 days of the total delay was properly counted as defence delay before considering the delay incurred due to the withdrawals of defence counsel. The appellant argued the trial judge erred in finding that the total remaining delay of 1,065 days did not constitute undue delay. The application judge concluded that the withdrawal by first defence counsel was an exceptional circumstance within the Jordan framework and that a period of delay associated with the actions of the other two counsel 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.

HELD: Appeal dismissed. The application judge did not misapply the Jordan framework by failing to find the discrete events that would justify delay above the presumptive 30-month ceiling or by failing to identify the need to do a mathematical calculation required by the Jordan legal framework. The application judge turned his mind to the consequences that followed each of the withdrawals of counsel and understood the need to consider the delay that flowed from each of the three withdrawals of counsel within the Jordan framework. There was 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. Because the result of the trial judge’s calculation of total delay was less than 30 months, it was appropriate to examine how the new Jordan framework applied to cases that fell below the ceiling for transitional cases. Considering this case in the context of the transitional framework prescribed in Jordan, there was no basis for the appellant’s claim that there was unreasonable delay.

R. v. Boehmer, [2019] S.J. No. 283, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R. Leurer and J.A. Tholl JJ.A., August 2, 2019. Digest No. TLD-September232019002