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PROCEDURE - Trial judge’s duties - New trial, grounds for

Monday, September 20, 2021 @ 9:30 AM  


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Appeals by the accused from conviction for possessing cocaine for the purpose of trafficking. The appellants argued the trial judge erred by dismissing their application for a stay of proceedings for unreasonable delay. Alternatively, they sought a new trial because the trial judge did not release reasons for three years for his ruling that the appellants had no standing to challenge the search warrant that led to the discovery of the drugs. The appellants were charged in 2015 and convicted in 2018. Eight days were set aside for pre‑trial applications and the trial, with one day reserved for the delivery of judgment on the voir dire. The standing application, for which five days of court time had initially been set aside, took all or parts of 10 court days to finish. Pre‑trial applications and the trial ended up consuming 24 court days. The defence gave late notice of their intention to expand the scope of the voir dire. Earlier trial dates available to the court and the Crown could not be accommodated due to the conflicting schedules of defence counsel. The total delay was 30 months and 17 days. The judge subtracted one month of defence delay but found that the time required to complete the case was justified by its particular complexity. When reasons for judgment on the standing issue were delivered, the judge was aware that appeals had been launched, and that the standing ruling and absence of reasons for that ruling were important issues on appeal.

HELD: Appeals allowed. New trial ordered. The judge did not err in not granting a stay of proceedings or in assessing the complexity of the case. There was no basis for interfering with his conclusion that the time the case took to complete was justified in the circumstances. The most significant factor in his complexity analysis was the need to accommodate defence calendar conflicts when it became apparent that continuation dates would be required given the nature of the issues being litigated on the voir dire. The judge did not err in allocating the time periods he did to discrete, exceptional events when the appellant Eheler was prepared to make his election and when he considered the trial dates to be confirmed. The judge was correct to allocate the additional time required to complete the voir dire to the failure of the parties to accurately estimate the time required to litigate the appellants’ privacy expectations in the searched suite and in the common areas of the apartment building. The total net delay was approximately 17 months which was under the Jordan ceiling. In the totality of the circumstances, a reasonable person would apprehend that the reasons on the standing issue were an after‑the‑fact justification rather than an articulation of the reasoning that led to the decision. The judge candidly acknowledged that he was obliged to reread the submissions and the record of the proceedings to prepare his reasons. These appeals must thus be addressed on the footing that no reasons were supplied for the ruling that denied the appellants standing to challenge the search warrant. The absence of reasons foreclosed meaningful appellate review of a central ground of appeal.

R. v. Eheler, [2021] B.C.J. No. 1851, British Columbia Court of Appeal, D.C. Harris, G.J. Fitch and S.A. Griffin JJ.A., August 27, 2021. Digest No. TLD-September202021001