After a provincial court judge had to step away due to health issues, one of the trials she was presiding over involving a man arrested for carrying guns following a fatal Keremeos crash may be declared a mistrial. 

Nicholas Allan James appeared via video in Penticton Provincial Court on April 25 for what was scheduled to be the defence's submissions in his trial before Judge Shannon Keyes. 

Instead, Judge Lynette Jung heard submissions and discussions from Crown and defence on a possible mistrial application. 

Judge Jung was set to take over the trial, and the case could have proceeded that morning based on the transcripts of the previous trial days. 

However, that would have required James' consent, which he did not give, as defence stated the transcripts failed to convey context and details such as lengths of pauses before responses or body language. 

James is facing charges of theft of mail, possession of stolen property, occupying a vehicle knowing there was a firearm present, possessing a firearm without a licence, and possessing a prohibited or restricted firearm, all arising out of an incident in 2022. 

Police had initially been called out to investigate a report of a suspicious vehicle and individuals reportedly breaking into a community mailbox, but were redirected while en route to the scene of a fatal crash involving the suspected vehicle. It was there they found and interacted with James, including him allegedly handing a guitar case with firearms to one of the responding officers. 

After a lengthy discussion between Judge Jung and the lawyers, the further issue of the previous voir dire that was held on the case was also raised, as James' current counsel hadn't represented him for that. 

Judge Jung ordered the case be rescheduled with trial dates in the future, following an application hearing that would discuss Section 669.2 of the Criminal Code of Canada, which covers what happens when a judge is unable to continue covering the proceedings of a trial. 

If a mistrial is declared, the case would effectively start over, with a repeat of the testimony from Crown's witnesses and possibly a repeat of the voir dire regarding the evidence presented there. 

Judge Jung, Crown and James' Defence all agreed that the case needed to be heard soon as James has remained in custody since his 2022 arrest.