R. v. Lai, 2021 BCCA 1052021 SCC 52 (39577)

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.]

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. The trial judge rejected Mr. Lai’s explanation regarding the re-election. 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. For these reasons, a majority of the Court would dismiss the appeal. Justice Côté is dissenting. She would have allowed the appeal substantially for the reasons of Butler J.A.”