Ski resort charged with strict liability offences in relation to cutting down endangered pine trees. S. 11(b) application. Defence argued a plea could not be entered until DNA test results regarding species of tree were disclosed. Transitional case.

Held: no 11(b) breach.

 As per JEK, 2016 ABCA 171, “[w]here an accused asserts a disclosure delay, the fact of the delay must be shown to have had some real effect on the right to a fair trial”.  Here, the defence was provided with an expert opinion on the tree species as part of initial disclosure; DNA results were not so substantive as to preclude setting a trial date before they were disclosed. No steps were taken to expedite process such as applying for case management, despite sophistication of the parties.  Implied defence waiver in not agreeing to earlier trial dates in Calgary. Even if delay had exceeded the ceiling, complexity of DNA testing would have justified delay as an exceptional circumstance.

A. Hepner – Defence Counsel