R. v. Tsega, 2019 ONCA 111

Her Majesty the Queen v. Tsega

[Indexed as: R. v. Tsega]

Ontario Reports

Court of Appeal for Ontario

Hourigan, Pardu and Harvison Young JJ.A.

February 15, 2019

144 O.R. (3d) 561 | 2019 ONCA 111

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Delay occasioned by Crown and defence certiorari applications not automatically included or excluded in calculating total delay for purposes of s. 11(b) of Charter — Crown certiorari application constituting exceptional circumstance if it was not frivolous and was undertaken in good faith — Defence certiorari application constituting exceptional circumstance if brought in good faith and defence delay if frivolous or brought in bad faith — Canadian Charter of Rights and Freedoms, s. 11(b).

Criminal law — Evidence — Hearsay — Two associates of accused making unsworn statements to police implicating accused in home invasion robbery committed by associates — Associates refusing to testify at accused's trial — Supreme Court narrowing grounds for admissibility of hearsay evidence after the trial — Trial judge erring in admitting their police statements under revised principled exception to hearsay rule — Corroborative evidence relied on by trial judge not ruling out affirmative explanations for police statements such that only remaining likely explanation was associates' truthfulness.

Facts

Three men carried out a home invasion robbery, in the course of which one of the men shot and killed the victim. The men did not implicate the accused in the home invasion when they were arrested, but two of them, K and M, later made unsworn statements to the police, claiming that the accused provided them with clothing to wear during the robbery and directed them to the victim's home. Those statements were made after K and M were told that the accused had claimed to a friend that K and M had coerced him into committing the home invasion and that one of them had held a gun to his head.

The accused was charged with first degree murder and after a preliminary inquiry was committed to stand trial for second degree murder. The Crown brought a certiorari application. The case was remitted to the preliminary inquiry judge to consider whether the accused could be liable for first degree murder through forcible confinement. The accused was committed to stand trial on a charge of first degree murder in September 2013. He applied unsuccessfully for certiorari. After he filed a notice of appeal, the Crown agreed in February 2016 to prefer a new indictment on a charge of second degree murder. K and M refused to testify at the accused's trial. The trial judge admitted their police statements under the principled exception to the hearsay rule, holding that the statements were necessary and that threshold reliability was established based in part on corroborating evidence in accordance with what was, at the time of the trial, the appropriate test for the admission of hearsay evidence. The accused was convicted of manslaughter.

He then brought an application for a stay of proceedings under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms on the basis of unreasonable delay. The total delay from the laying of the charges to the conviction was 69.3 months. The trial judge ruled that the delay occasioned by the Crown and defence certiorari applications should not be included in the calculation of delay, reducing the delay to 22.4 months, which was below the 30-month ceiling. Alternatively, she deducted eight months for defence delay, 26.25 months for exceptional circumstances and 18 months for the unusual complexity of the case, bringing the delay below the ceiling. Finally, she found that even if the total delay was more than 30 months, the transitional exception applied, as the time the case took was justified based on the parties' reasonable reliance on the law as it existed before R. v. Jordan. The s. 11(b) application was dismissed. The accused appealed his conviction.

Held, the appeal should be allowed.

The Supreme Court of Canada's decision in Bradshaw has laid out a more restrictive test for the admission of hearsay evidence. The trial judge erred in admitting K and M's police statements under the principled exception to the hearsay rule in light of the new test. Corroborative evidence can be used to establish threshold reliability only if it shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. That standard will not be met where the corroborative evidence is equally consistent with another explanation. The trial judge erred in relying on K and M's statements as being mutually corroborative. There was an opportunity for collusion, and material parts of the statements were influenced by leading questions and suggestions made by the police. She also erred in relying on corroborative evidence that did not implicate the accused and that therefore did not go to the material aspects of the hearsay statements. Finally, looking at the corroborative evidence as a whole, it was not established on a balance of probabilities that it ruled out alternative explanations, such that the only remaining likely explanation for the statements was K and M's truthfulness. This was not a situation where cross-examination would be of no benefit. The curative proviso did not apply as the hearsay statements were important parts of the Crown's case and were the only evidence directly tying him to the planning and execution of the home invasion.

Delays occasioned by the pursuit of extraordinary remedies are not to be automatically excluded when calculating delay under the Jordan framework. Rather, where the Crown brings a non-frivolous certiorari application in good faith, the resulting delay should be considered an exceptional circumstance. Defence certiorari applications which are frivolous or made in bad faith will generally constitute defence delay. Where they are brought in good faith, they constitute an exceptional circumstance because they are outside of the control of the Crown, unless in opposing such an application or an appeal therefrom, the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner. In this case, there was no suggestion that the Crown was acting in bad faith or that it was dilatory in bringing the certiorari application. While not a strong submission, it was not frivolous to argue that the accused could be liable for constructive first-degree murder. With respect to the defence certiorari proceeding and appeal, the Crown did not take a frivolous position on the merits, and there was no suggestion that it acted in bad faith or was dilatory. Consequently, the time taken for the Crown's application and the time taken for the defence application and abandoned appeal were discrete events totalling 46.9 months. That reduced the total delay to 22.4 months, well below the 30-month ceiling. A further six-month reduction should be made to reflect events impacting on the trial judge's availability, along with time lost at the preliminary inquiry and at trial due to the refusal of witnesses to testify. In the alternative, the transitional exception applied. The delay was not unreasonable.

Procedural History

APPEAL by the accused from the conviction entered by Aitken J. of the Superior Court of Justice on June 30, 2016 and from the sentence imposed.

Counsel:

• Jonathan Dawe and Michael Dineen, for appellant
• Amy Alyea, for respondent

The judgment of the court was delivered by

HOURIGAN J.A.

A. Overview

1In February 2010, three young men from Toronto, Dylon Barnett, Kristopher McLellan and Kyle Mullen, carried out a home invasion in Barrhaven, Ontario. The target of the invasion, Michael Swan, was shot and killed during the robbery. The three men, referred to as the "Toronto Three" by the trial judge, were arrested hours after the home invasion. Several months later the police arrested the appellant, alleging that he was responsible for directing the Toronto Three to Mr. Swan's home and supplying them with clothing to wear during the robbery.

2The appellant was convicted of manslaughter in connection with Mr. Swan's death. He appeals his conviction on the grounds that the trial judge erred in admitting certain hearsay statements made by Messrs. Mullen and McLellan for the truth of their contents and in dismissing a post-conviction application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. In addition, the appellant seeks leave to appeal the sentence imposed by the trial judge of nine years, less credit for pre-sentence custody.

3For the reasons I will detail below, I have concluded that the manslaughter conviction must be set aside and a new trial ordered. In summary, the law regarding the admission of hearsay statements was fundamentally changed by the Supreme Court of Canada in R. v. Bradshaw, [2017] 1 S.C.R. 865, 2017 SCC 35, which was released after the trial judge's ruling on the impugned hearsay statements in the case at bar. Applying Bradshaw to the facts of this case leads to the inescapable conclusion that the statements should not have been admitted for the truth of their contents. Although I am not satisfied that the appellant's right to be tried within a reasonable time has been violated and I ultimately conclude that the trial judge's s. 11(b) ruling should not be interfered with, I depart from the trial judge's reasoning and offer what I view to be the correct analytical approach for considering the impact of extraordinary remedies on an accused's s. 11(b) rights.

B. Facts

4The following brief factual summary will serve to put the issues in this appeal into context.

5The appellant was raised in Toronto, where he became friends with Mr. Barnett. When he was about 12, he relocated with his family to Barrhaven, a community southwest of Ottawa. He maintained contact with Mr. Barnett, who was close friends with Mr. McLellan. Through a mutual friend, the appellant was also acquainted with Mr. Swan, a well-known marijuana dealer. At the time of his death, Mr. Swan was 20 years old and living with two roommates in a rented home in Barrhaven.

6During the Christmas holidays of 2009, the appellant visited his father in Toronto. While there, he socialized with Mr. Barnett. According to a statement made to police by Mr. McLellan, he met with the appellant at Mr. Barnett's house and they first discussed robbing Mr. Swan. The appellant stayed in Toronto until he went on a ski trip with the Barnett family at some point after Christmas. The appellant returned to Toronto with Mr. Barnett early in the New Year, before going home to Barrhaven a few days later. Over the next six weeks, the appellant and Mr. Barnett exchanged a number of text messages, but no evidence was adduced at trial about the content of the messages pre-dating February 21, 2010.

7On the evening of February 21, 2010, the appellant and Mr. Barnett exchanged a series of text messages. At approximately 4:00 p.m., the appellant texted Mr. Barnett, ". . . when you guys leavin?" At about 5:00 p.m., he sent a further text to Mr. Barnett stating, "kk. Bring everything btw." At approximately 6:00 p.m., the Toronto Three began driving to Barrhaven. Along the way they exchanged texts with the appellant, including a request for food. The appellant arranged to have food delivered to a friend's home, where the Toronto Three briefly met up with the appellant. At approximately 10:30 p.m., the food delivery was re-routed to the appellant's home, where the Toronto Three and the appellant waited for the arrival of their food.

8The Crown's theory at trial, supported by the hearsay statements made by Messrs. Mullen and McLellan, was that during the next two hours the appellant provided clothing and masks to wear during the robbery and drove with the Toronto Three to point out Mr. Swan's Barrhaven house, which was obstructed from the road by a line of trees.

9At approximately 12:30 a.m., the Toronto Three entered Mr. Swan's house. Messrs. McLellan and Barnett were armed with handguns and Mr. Mullen was carrying a baseball bat. They ordered Mr. Swan, along with his roommate, Tyler Tanguay, and his girlfriend, Kaitlyn Scott, to kneel on the floor. The robbers demanded to know the location of marijuana, cash and a gun. Mr. McLellan then shot Mr. Swan in the back, fatally wounding him. After searching the house for ten or 20 minutes, the robbers left with marijuana, cash and other items, including the victims' cellphones.

10After the home invasion, between 12:52 and 1:09 a.m., the appellant and Mr. Barnett exchanged a series of text messages. In one message, Mr. Barnett asked the appellant "U do it?" and he replied, "Ya bro it's done. U ok?" At approximately 2:00 a.m., the appellant texted Mr. Barnett to ask whether he wanted to play an online video game.

11The police were able to trace the location of Ms. Scott's cell phone travelling toward Toronto. The OPP stopped Mr. McLellan's vehicle and found loaded handguns, drugs, money and other items from the robbery. The occupants of the vehicle were arrested and taken to Ottawa. In their initial statements to the police, neither Mr. McLellan nor Mr. Mullen implicated the appellant in the home invasion.

12As a result of media coverage of the home invasion, Connor Buchanan, a friend of the appellant's, learned of Mr. Barnett's arrest. He became concerned about the appellant's possible involvement in the home invasion because he recalled the appellant telling him on the night of the robbery that Mr. Barnett and some friends were coming to town. Connor Buchanan decided to meet the appellant with his father, Alec Buchanan, to discuss the situation. The appellant admitted to them that the Toronto Three had visited him at his residence on the night of the robbery. He also told them that the Toronto Three threatened to shoot him if he did not give them "the guy's name" and tell them "where's this dealer at". Alec Buchanan recalled the appellant telling them the Toronto Three threatened him by holding a gun to his head. The appellant said he gave the Toronto Three Mr. Swan's name and address before they left.

13The Buchanans went to the police in late April and reported what the appellant had told them. The police began an investigation of the appellant, which included wiretap authorizations for his phone, as well as for the Toronto Three's jailhouse phone conversations and visits.

14On September 9, 2010, the police re-interviewed Messrs. McLellan and Mullen separately. During those interviews, the police advised that they knew that the appellant had met with the Toronto Three on the evening of the home invasion. Mr. McLellan declined to say anything further, but when the officers told Mr. Mullen that the appellant was saying that the Toronto Three had threatened him, Mr. Mullen vigorously denied the allegation. He told the officers that the appellant had given them clothing to wear and agreed with the police's suggestion that the appellant had shown them Mr. Swan's house.

15On November 16, 2010, the police re-interviewed Mr. McLellan. When Mr. McLellan was told that the appellant had alleged that he had put a gun to the appellant's head, Mr. McLellan made a statement implicating the appellant in the robbery plot. Mr. McLellan told the police that he met the appellant at Mr. Barnett's house over the 2009 Christmas holidays and that the appellant told them that he knew "a guy that has lots of weed and money" and suggested that "you guys can rob him". He further advised that two months later on February 21, 2010, Mr. Barnett contacted him saying, "tonight's the night". He agreed with an officer's suggestion that the appellant had shown them Mr. Swan's house that evening. In addition, Mr. McLellan said that the appellant had given them clothes to wear during the robbery.

16At his October 2013 trial, Mr. McLellan testified in his own defence. He admitted to being the shooter. However, he claimed that the gun had gone off accidently. Mr. McLellan implicated the appellant in the robbery plot, but his testimony was not entirely consistent in this regard with his November 2010 police statement.

17At the appellant's trial, the Crown attempted to call Messrs. McLellan and Mullen as witnesses. They both refused to testify. The Crown brought an application to admit Mr. Mullen's September 2010 police statement, along with Mr. McLellan's November 2010 police statement and October 2013 trial testimony, all for the truth of their contents. The trial judge ruled that the police statements could be admitted but refused to admit Mr. McLellan's trial testimony.

18Following the appellant's conviction for manslaughter, but before his sentencing, the Supreme Court of Canada released its decision in R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27. The appellant then brought a s. 11(b) Charter application, which was dismissed by the trial judge.

C. Issues

19This appeal raises four issues:

1. Did the trial judge err in admitting the hearsay statements?

2. If the answer to issue 1 is yes, is this an appropriate case for the use of the curative proviso in s. 686(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46?

3. Did the trial judge err in dismissing the appellant's s. 11(b) Charter application?

4. Should the appellant's sentence be reduced?

D. Analysis

(1) Hearsay Statements

(a) Ruling of the Trial Judge

20The trial judge applied the principled approach to hearsay, pursuant to R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57. Given that both men refused to testify at the appellant's trial, the trial judge concluded that the necessity criteria of the hearsay test had been satisfied. At issue was whether each statement met the requirement for threshold reliability. The trial judge identified the two avenues for indicia of threshold reliability: (1) procedural substitutes, which refer to substitutes for contemporaneous cross-examination of the declarant that enable the trier of fact to assess the statement's truth and accuracy and; (2) substantive reliability, which refers to the presence of sufficient substantial guarantees of reliability or the inherent trustworthiness of a statement.

21First, the trial judge held that Mr. Mullen's September 2010 statement to the police was admissible. In that statement, Mr. Mullen denied that he threatened the appellant and specifically told the officers the appellant had given him and his accomplices a couple of sweaters, two pairs of gloves, two masks and a scarf. The trial judge identified the inherent dangers in admitting Mr. Mullen's statement: the statement was not given under oath with the appropriate warnings, the statement was not videotaped, Mr. Mullen was not subjected to cross-examination at the time of the statement and Mr. Mullen could not be subjected to cross-examination at the appellant's trial, thereby impeding the ability to evaluate Mr. Mullen's credibility and sincerity. However, in the trial judge's opinion, several circumstantial guarantees of reliability supported a finding that Mr. Mullen's statement passed the test for threshold reliability. In particular, the trial judge pointed to the spontaneous and direct nature of the statement, the lack of evidence that Mr. Mullen held negative animus toward the appellant, the generally inculpatory nature of Mr. Mullen's statement and the existence of substantial corroborating evidence. As such, Mr. Mullen's September 2010 statement was held to be admissible.

22Second, the trial judge admitted Mr. McLellan's November 2010 statement, in which Mr. McLellan said that the appellant identified a target for the robbery, showed him and his accomplices where Mr. Swan resided, and provided them with black hoodies and "maybe" a toque. The trial judge identified the dangers inherent in admitting the statement: the statement was not made under oath nor were the appropriate cautions provided, the statement was not videotaped, no cross-examination occurred at the time of the statement and there was no opportunity for defence counsel to cross-examine Mr. McLellan and explore problems with his credibility and sincerity. The trial judge concluded that threshold reliability was established, albeit this finding was a "close call", based on the circumstantial guarantees of the reliability of the statement. While noting that Mr. McLellan's statement lacked the spontaneity of Mr. Mullen's statement, the trial judge pointed to a lack of evidence of negative animus toward the appellant, the inculpatory nature of portions of the statement and the presence of corroborating evidence in concluding that threshold reliability had been established. Although there was an opportunity for collusion between Mr. McLellan and Mr. Mullen between September 9 and November 16, the trial judge was not convinced that there was actual collusion tainting Mr. McLellan's evidence.

23Third, the trial judge held that Mr. McLellan's evidence from his own trial was inadmissible. Such evidence included Mr. McLellan's description of the appellant's alleged involvement in the plan to rob Mr. Swan. Despite there being procedural substitutes for contemporaneous cross-examination of the declarant, the trial judge found there were limitations to the extent that these safeguards could support a finding of threshold reliability in the context of the appellant's trial. Further, the format and manner of the cross-examination of Mr. McLellan reduced confidence in the accuracy of his statements at trial, undermining the statements' substantive reliability for the purpose of threshold reliability. Therefore, Mr. McLellan's trial evidence was not admitted.

(b) Bradshaw

24In Bradshaw, the issue for the court was: when and how can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established? The court noted that hearsay dangers can be overcome and threshold reliability established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability); or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability). The court also stated that in rare cases procedural and substantive reliability can work in tandem to meet the threshold reliability standard.

25The court placed strict limits on the use of corroborative evidence to establish threshold reliability. It can only be used if it "shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement" (emphasis added). To be clear, the corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement, as the purpose of the corroborative evidence is to mitigate the need for cross-examination on the very point for which the hearsay evidence is tendered.

26Justice Karakatsanis, writing for the majority, stated that in assessing threshold reliability, "the trial judge's preoccupation is whether in-court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process". Therefore, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination. If alternative explanations for the statement could have been elicited or probed through cross-examination, the hearsay dangers persist and the statement should not be admitted. This standard will not be met where the corroborative evidence is equally consistent with another explanation. The corroborative evidence must show on a balance of probabilities that the only likely explanation for the statement is the truth or accuracy of the material aspects of the statement.

27Justice Karakatsanis provided the following four-step framework for determining whether corroborative evidence meets the test of threshold reliability:

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should

1. Identify the material aspects of the hearsay statement that are tendered for their truth;

2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

28It is important to recognize that the Supreme Court's ruling in Bradshaw created a much more onerous test for the admission of a hearsay statement than existed at the time of the appellant's trial. As Chris D.L. Hunt and Micah B. Rankin described in their article, "R. v. Bradshaw: The principled approach to hearsay revisited" (2018), 22:1 Intl. J. Evidence & Proof 68, at p. 74:

. . . the majority's framework creates a far more restrictive standard for the admissibility of corroborative evidence. This is reflected in the second and third steps of the new framework; namely, the requirement that trial judges identify alternative (and even speculative) explanations for the hearsay statement and the requirement that the corroborative evidence must show the truthfulness of the statement to be the only likely explanation. As Justice Moldaver observed in dissent, this approach appears to mean that "for a piece of corroborative evidence to make its way onto the evidentiary scale for threshold reliability purposes, it must effectively be independently capable of tipping the scale".

29In the next section of my reasons, I consider how that more restrictive standard applies to the impugned statements in the case at bar. I note that because the trial judge did not have the benefit of the Supreme Court's decision in Bradshaw, she did not apply this test in her ruling on the admissibility of the hearsay statements.

(c) Application of Bradshaw

30The application of the four-step framework provided by the Supreme Court in Bradshaw to the statements of Messrs. McLellan and Mullen makes clear that they should not have been admitted for the truth of their contents.

31Turning to the first part of the analysis, the material parts of the statements being tendered for their truth were (i) that the appellant had given the Toronto Three clothing to wear during the robbery, and (ii) that the appellant had driven out with the Toronto Three to Mr. Swan's house to point out the location of the residence. In addition, in Mr. McLellan's statement he told the police that the appellant had first proposed the idea of robbing Mr. Swan when they met at Mr. Barnett's father's home over the Christmas holidays.

32The second part of the analysis reveals that the primary hearsay danger raised by those aspects of the statements is the difficulty in ascertaining the sincerity of the claims regarding the appellant's alleged involvement in the robbery.

33The third part of the analysis invites the court to consider alternative, even speculative, explanations for the statements. In the circumstances of this case, there are several alternative explanations for both statements.

34With respect to Mr. Mullen, there were four potential motives identified by the appellant's counsel to falsely implicate the appellant in the robbery plot. First, the appellant had made an allegation that the Toronto Three had threatened him by holding a gun to his head, which implicated them in a further crime. Second, the police suggested to Mr. Mullen that the appellant's account might lead a jury to conclude that the Toronto Three had planned in advance to shoot Mr. Swan. Third, the police suggested to Mr. Mullen that the appellant was more likely to support Mr. Barnett's version of events and that he was going to "buddy up . . . with Dylon's side and fuck you [Mullen]. . ." Fourth, Mr. Mullen was upset about the allegation that the appellant had been threatened and this gave him an incentive to falsely implicate the appellant out of spite. I accept that these are all credible explanations for Mr. Mullen's statement.

35With respect to Mr. McLellan, the appellant's counsel identified three potential motives to falsely implicate the appellant in the robbery plot. First, as was the case with Mr. Mullen, the appellant's statement implicated Mr. McLellan in a further crime. Second, the appellant had specifically alleged that it was Mr. McLellan who held the gun to his head. This evidence put Mr. McLellan in possession of a gun before the shooting. Mr. McLellan, at the time, was denying being the shooter, giving him a further motive to discredit the appellant. Third, as the trial judge noted, it was possible the pair had a conversation about Mr. Mullen's September 2010 police statement. This fact, coupled with a police suggestion to Mr. McLellan that the best way to discredit the appellant was by supporting Mr. Mullen's statement, provided Mr. McLellan with a motive to corroborate the account that Mr. Mullen had previously given to police. I accept these as valid potential motives for falsely implicating the appellant.

36The final part of the analysis requires the court to closely examine the corroborative evidence led at the voir dire to determine whether it rules out these alternative explanations, such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

37The appellant submits that the trial judge erred in relying on the statements as being mutually corroborative. I agree. It is possible that Messrs. Mullen and McLellan discussed Mr. Mullen's September 2010 statement to the police before Mr. McLellan spoke to the police. In addition, it is clear that material parts of the statements were influenced by leading questions and suggestions made by the police. As Bradshaw makes clear, corroborative evidence must be trustworthy and this evidence was not.

38The trial judge also relied on corroborative evidence that did not implicate the appellant. She found support for this approach in R. v. Khela, [2009] 1 S.C.R. 104, 2009 SCC 4, at paras. 39-40, where the court stated that confirmatory evidence need not implicate the accused, but should give the court comfort that the witness was truthful in relevant aspects of his or her account. Khela was a case about the reliability of Vetrovec witnesses. The approach taken in that context was rejected by the majority in Bradshaw for use in the analysis of the admissibility of hearsay statements under the principled approach. Therefore, the trial judge erred in relying on any evidence that does not go to the material aspects of a hearsay statement.

39The Crown concedes that the trial judge erred in this regard but argues that she identified four sufficient categories of corroborative evidence to support the material aspects of the statements to establish threshold reliability.

40First, the Crown relies on the evidence regarding the recovery of the black hoodies worn by the Toronto Three at the time of their arrest, including one with an Ohio State logo. The appellant's sister attended that school at the time.

41Second, the Crown relies on evidence that suggests that no threats were made against the appellant when the Toronto Three were at his home. Specifically, it points to the text messages between the appellant and Mr. Barnett after the home invasion that show no sign of concern on the appellant's part. The intercepted telephone calls between the appellant and his mother wherein the appellant distanced himself from the story he told the Buchanans are also cited as corroborative. Further, the Crown notes the evidence of the appellant's brother, who was home at the time the Toronto Three visited. It did not appear to him that any threatening took place nor did the appellant tell him about the threats.

42Third, the Crown points to the admission made by the appellant to the Buchanans that he told the Toronto Three where Mr. Swan lived. The Crown submits that in the absence of any threats, this admission corroborates the hearsay statements.

43Finally, the Crown submits that although the trial judge did not rely on the cellphone evidence, it is also corroborative of the statements. That evidence suggested that the appellant could have been near Mr. Swan's home, rather than at his own home, shortly before the home invasion and is inconsistent with the appellant's story about being threatened.

44I accept that the Crown raises a number of pieces of evidence that are supportive of the veracity of the material parts of the hearsay statements. The issue is whether this evidence rules out the alternative explanations, such that the only remaining likely explanation for the statements is the declarants' truthfulness about the material aspects of them. In short, can we be satisfied, based on this evidence, that cross-examination is unnecessary.

45In my view, the Crown has not met the test for the admission of the hearsay statements as articulated by the Supreme Court in Bradshaw. For example, the evidence regarding the clothing does not remove alternative scenarios regarding its source. In his statement, Mr. Mullen pointed to the appellant as the supplier of the masks used in the robbery, while Mr. McLellan testified at his trial that he was the one who supplied the masks. Moreover, there is no independent evidence to support the theory that the appellant supplied the clothing.

46The evidence of the communications between the appellant and Mr. Barnett after the home invasion could be interpreted as demonstrating a lack of concern on the part of the appellant. However, the text messages were exchanged after the home invasion when the imminent threat to the appellant had dissipated. The fact that the appellant's brother did not observe any threatening behaviour could be because of his location in the home that evening. Further, the appellant may not have told his brother about the threats for a number of reasons, including concerns about his family's safety.

47The intercepted phone calls capture the appellant discussing his response to police inquiries regarding his interactions with the Toronto Three the evening of the home invasion. This evidence appears to show the appellant trying to create an alternative scenario to the one he told the Buchanans. That could be because, as suggested by the Crown, his mother or brother told him that the threatening story would not withstand scrutiny. However, it could also be that he was looking for an alternative story because when he told the Buchanans about being threatened and revealing Mr. Swan's name and address, Alec Buchanan told him that he could be charged as an accessory to murder.

48The admission to the Buchanans that he told the Toronto Three Mr. Swan's address is supportive of the veracity of the statements only if the story about threatening is disbelieved.

49The cellphone records are evidence that the appellant was closer to Mr. Swan's residence than to his own home before the home invasion. However, even those records are subject to debate, as the expert evidence at trial made clear that cellphones signals do not always bounce off of the nearest cellphone tower and tend to identify only a general area where the cellphone might be located.

50In summary, looking at the corroborative evidence as a whole, I cannot be satisfied on a balance of probabilities that it rules out alternative explanations, such that the only remaining likely explanation for the statements is Messrs. Mullen and McLellan's truthfulness. This is not a situation where cross-examination would be of no benefit. Cross-examination could well cast doubt on the truthfulness of the statements. Accordingly, I conclude that the trial judge erred in admitting the hearsay statements.

(2) Curative Proviso

51The Crown submits that if the trial judge erred in admitting the hearsay statements, this court should dismiss the appeal pursuant to the curative proviso in s. 686(b)(iii) of the Criminal Code. This argument, which is not included in the Crown's factum, may be dealt with summarily.

52In my view, the curative proviso has no application in the case at bar. For it to be available, the Crown has the onus of establishing, on the admissible evidence, that the case against the appellant is overwhelming or that it can be safely said that the legal error was harmless because it could have had no impact on the verdict.

53The hearsay statements were important parts of the Crown's case against the appellant. They were the only evidence directly tying him to the planning and execution of the home invasion. They cannot be said to be inconsequential. Nor do I find that the admissible evidence establishes an overwhelming case against the appellant. I conclude, therefore, that there must be an order for a new trial.

(3) Section 11(b) Application

(a) Jordan Analysis

54In Jordan, the Supreme Court recognized that timely justice is a hallmark of a free and democratic society. The court mandated a new analytical framework for applying s. 11(b), motivated by a desire to move from a culture of complacency that had led to intolerable delays to a culture of accountability that would result in a more efficient justice system. Under the Jordan framework, all the players in the criminal justice system, including the police, Crown, defence counsel and courts are required to take responsibility for ensuring that accused are brought to trial expeditiously. As the court stated, "[r]eal change will require the efforts and coordination of all participants in the criminal justice system".

55The analytical framework for determining whether delay in a given case has violated an accused's s. 11(b) right to be tried within a reasonable time has been well established in the Jordan jurisprudence. It was succinctly summarized by the Supreme Court in R. v. Cody, [2017] 1 S.C.R. 659, 2017 SCC 31, at paras. 20-25, as follows:

The new framework established in Jordan for analyzing whether an accused person's right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts.

The first step under this framework entails "calculating the total delay from the charge to the actual or anticipated end of trial". In this case, an information was sworn against Mr. Cody on January 12, 2010, and his trial was scheduled to conclude on January 30, 2015. This makes the total delay approximately 60.5 months.

After the total delay is calculated, "delay attributable to the defence must be subtracted". The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then "depends upon whether the remaining delay -- that is, the delay which was not caused by the defence -- is above or below the presumptive ceiling".

If the net delay falls below the ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay.

(b) Ruling of the Trial Judge

56The appellant was charged on September 21, 2010 and was convicted on June 30, 2016. The original charge was manslaughter, but it was later upgraded to first degree murder. In February 2012, the appellant was committed to stand trial on a charge of second degree murder after the preliminary inquiry judge rejected the Crown's argument that he should be committed for trial on a charge of first degree murder. His trial was scheduled to begin on February 19, 2013.

57The Crown filed a certiorari application following the committal on second degree murder. The hearing of that application was delayed pending the outcome of the Crown's appeal of a certiorari review to this court seeking to have the Toronto Three indicted for first degree murder. The Crown appeal in that case was successful and the case was remitted to the preliminarily inquiry judge with a direction that Mr. McLellan be committed on this charge and that the preliminary inquiry judge reconsider whether there was sufficient evidence to commit Messrs. Mullen and Barnett on first degree murder charges.

58In June 2013, the Crown's certiorari application regarding the appellant's committal was heard and his case was remitted to the preliminary inquiry judge to consider whether the appellant could be liable for first degree murder through forcible confinement. In September 2013, the appellant was committed to stand trial on a charge of first degree murder.

59The appellant then applied for certiorari of this committal. The Crown brought a motion to remove counsel for the appellant based on an alleged conflict of interest. That motion was ultimately resolved and the appellant's certiorari application was heard in November 2014 and dismissed in March 2015. The appellant filed a notice of appeal in this court. In February 2016, the Crown agreed to prefer a new indictment on a charge of second degree murder and consented to re-election to trial by judge alone. The appellant then abandoned his appeal as moot.

60The trial judge calculated the period between charge and conviction as being 69.3 months. She focused her analysis on two periods of time. The first period was from the first committal decision until the decision to commit on first degree murder. The second period was when the defence brought certiorari proceedings following the appellant's subsequent committal on first degree murder, and then appealed the certiorari decision. The trial judge concluded that these periods of "appellate delay" should not be included in the calculation of delay. This reduced the period of delay to 22.4 months, which is below the 30-month Jordan ceiling. On that basis, she dismissed the s. 11(b) application.

61Notwithstanding her ruling, the trial judge went on to conduct a Jordan analysis. She deducted eight months for defence delay. The trial judge then considered the issue of discrete, exceptional events and deducted 26.25 months, consisting of one month due to events impacting on the trial judge's availability, 4.5 months at the preliminary inquiry due to the refusal of witnesses to testify, 0.5 months at trial due to the refusal of witnesses to testify, and 20.25 months due to the defence certiorari application, and the appeal therefrom. Those deductions left a balance of 35 months. The trial judge found that the case was exceptionally complex from start to finish, both in terms of the evidence collected and the legal issues involved, and deducted another 18 months. Finally, the trial judge found that even if the total delay was more than 30 months, she would have found, applying the transitional provisions, that the delay was not unreasonable. The Crown satisfied her that the time the case took was justified based on the parties' reasonable reliance on the law as it previously existed.

(c) Post-Jordan Jurisprudence and Extraordinary Remedies

62Jordan did not consider the impact of extraordinary remedies and interlocutory appeals from such orders on the determination of whether an accused's s. 11(b) rights have been violated. The post-Jordan jurisprudence also offers no clear answers. Below, I will consider some of that case law before turning to what I consider to be the correct approach.

(i) Crown Applications for Extraordinary Remedies

63The most authoritative commentary on this issue in the post-Jordan jurisprudence is this court's decision in R. v. Manasseri, (2016), 132 O.R. (3d) 401, 2016 ONCA 703. In that case, George Kenny was discharged on assault and manslaughter charges. The Crown moved to quash the discharge, but its certiorari application was dismissed. A Crown appeal of the certiorari decision was allowed and the matter was remitted to a preliminary inquiry judge who committed Mr. Kenny on the manslaughter charge. Watt J.A. concluded that "[w]hether the period encompassed by the motion for certiorari and related appeals is deducted or remains included makes no difference to the location of these proceedings" given that Mr. Kenny's s. 11(b) Charter rights had been infringed regardless.

64The respondent relies on the obiter statement of Watt J.A., wherein he commented that it "would seem incongruous to treat the time taken in pursuit of extraordinary remedies differently than that taken in appeals from convictions, acquittals or stays of proceedings as Potvin mandates". This interpretation of Manasseri would suggest that delay due to the Crown certiorari applications should be deducted from the total delay. The appellant distinguishes the case at bar from Manasseri, noting that in that case Mr. Kenny had originally been discharged on all counts and that this discharge had been upheld on the Crown's original certiorari review. In contrast, in the case at bar, the appellant was always a person charged with an offence.

65Another recent case dealing with the impact on s. 11(b) of a Crown certiorari motion is Les Industries Garanties limitée v. R., [2017] Q.J. No. 3998, 2017 QCCS 1504. In that case the motion was eventually granted. The applicant argued that delay associated with the certiorari motion should not be deducted from the total delay on the basis that judicial review of a committal decision constitutes unilateral state action that may control whether or not charges are withdrawn or re-laid. Further, the applicant suggested that the Crown should have preferred an indictment instead of seeking judicial review. Both of these arguments were rejected and the court relied on R. v. Potvin, [1993] 2 S.C.R. 880, 1993 CanLII 113 (SCC) and Manasseri to hold that delay associated with the certiorari application does not form part of the total delay for s. 11(b) purposes.

66In a recent Ontario case the court examined the merits of an application for extraordinary remedies to consider if it constituted an abuse of prosecutorial discretion. In R. v. Patrois, [2018] O.J. No. 701, 2018 ONSC 934, the defence objected to the characterization of the Crown's certiorari application and appeal of the decision refusing to grant certiorari as appellate delay. In discussing this issue, the decision of the trial judge in the case at bar was referenced and followed. In Patrois, the trial judge found the Crown had valid reasons to apply for certiorari. Therefore, the decision to proceed with the certiorari application was held not to be an abuse of prosecutorial discretion. The delay associated with the application and appeal was held to constitute appellate delay that did not count as part of the total delay for the Jordan s. 11(b) analysis.

67In contrast to these decisions, in two other recent cases, courts found that delay due to Crown certiorari applications should be included in the calculation of total delay for s. 11(b) purposes.

68In R. v. Singh, [2018] Q.J. No. 469, 2018 QCCM 10, the Crown brought a certiorari motion and the court found that "the qualification of the time spent on an extraordinary remedy depends on the facts of each case" and that courts cannot ignore a defendant's s. 11(b) rights just because a certiorari motion has been filed. Further, even when it is a defendant that brings such a remedy, the prosecution is not relieved of their obligation to bring the case to trial within a reasonable period. Boutros J.M.C. distinguished Les Industries Garanties and Manasseri on the basis that in those cases the accused had been discharged and had no outstanding charges and could not benefit from s. 11(b). However, in this case, Mr. Singh remained charged and the trial at first instance was merely suspended. As such, when a person remains charged, "his or her sec. 11(b) Charter rights continue in full force". Further, during the certiorari proceedings the prosecution failed to avail itself of the tools it could have used to move the case along and ensure that Mr. Singh's s. 11(b) rights were not violated. The court declined to deduct any delays that the prosecution could have mitigated from the total delay and concluded that Mr. Singh's s. 11(b) rights were violated.

69Similarly, in R. v. Mansour, [2018] O.J. No. 6421, the court held that certiorari proceedings brought by the Crown were to be included in the calculation of the Jordan delay, as the applicant, Mr. Mansour, remained charged throughout the proceedings and is entitled to s. 11(b) protections.

(ii) Defence Applications for Extraordinary Remedies

70On the issue of defence applications for extraordinary remedies, the jurisprudence is also split. In R. v. Brezden, 2017 ONSC 6376, Leitch J. concluded that delay associated with defence certiorari proceedings should not be deducted from the Jordan delay calculation because the application was made on legitimate grounds to make full answer and defence and was not designed to cause further delay. The court also concluded that a defence certiorari application does not qualify as an exceptional circumstance or a discrete exceptional event. At para. 58, Leitch J. explicitly stated that she did "not find Tsega persuasive for multiple reasons" and suggested that the decision is in conflict with the underlying principles of Jordan.

71In R. v. Richards, [2016] O.J. No. 5694, 2016 ONSC 6372, it was also held that the delay due to an unsuccessful defence certiorari application should not be counted against the defence. Salmers J. was satisfied that the certiorari application in this case was legitimately undertaken to respond to the charges. As it is the accused's right to make a full answer and defence, the certiorari application was a legitimate step in responding to the charges. Therefore, the time required for the application does not constitute defence delay. For the same reason, the delay associated with the certiorari application should not be considered an exceptional circumstance.

72In contrast to the decisions in Brezden and Richards, in R. v. Jansen, [2017] O.J. No. 2465, 2017 ONSC 2954, the court deducted the delay caused by the defence certiorari application from the total delay on the basis that the application was withdrawn for lack of legal aid and the grounds of the application were never argued. The court was unable to determine the legitimacy of the application, a factor in determining whether the delay was attributable to the defence. The court reasoned that the absence of this evidence suggested that the application was frivolous. It concluded that the delays associated with the certiorari application could be attributed to the defence either as defence delay or as an exceptional circumstance.

73The court reached a similar result in R. v. Codina, [2017] O.J. No. 4578, 2017 ONSC 4886, where three meritless certiorari applications by the accused were used as evidence of the accused's lack of effort to expedite the proceedings. The reasons of this decision imply that the delays associated with meritless applications were attributable to defence caused delay.

74Finally, in Ontario (Superintendent of Financial Services) v. Dies, [2018] O.J. No. 4894, 2018 ONCJ 641, the appellant had previously brought a motion to quash the information, which was later characterized as frivolous and meritless. Therefore, the court reasoned that the delay associated with the certiorari motion should be deducted as defence delay, given that the motion had no foundation in fact or law. Alternatively, even if the defence motion to quash was not viewed as meritless, the time associated with the motion could be deducted as a "discrete event" due to the inaccurate time estimates for trial provided by the parties.

(d) The Correct Approach to Extraordinary Remedies in the Jordan Analysis

75In cases where the accused does not remain charged with a crime during the relevant period, it follows from the plain wording of s. 11(b) that the constitutional right to be tried within a reasonable time is not operative. That is not the situation in the case at bar. The appellant remained subject to a criminal charge throughout the entire period.

76As noted above, the trial judge excluded what she termed "appellate delay" from the Jordan analysis. I consider that to be the wrong analytical approach. By automatically excluding delays occasioned by the pursuit of extraordinary remedies and appeals therefrom, courts are not fulfilling their Jordan imposed obligation of ensuring that all the parties in a case are acting responsibly to ensure timely access to justice. For example, a situation could arise where the pursuit of extraordinary remedies by the Crown could be considered frivolous or found to be undertaken in bad faith. The accused must have an ability to challenge those actions and seek an effective remedy where they violate his or her s. 11(b) rights.

77Similarly, it cannot be the case that the time taken for extraordinary remedies and appeals therefrom must, without exception, be included in the delay calculation under Jordan. If that were the case, the Crown's ability to bring an application for extraordinary remedies would be effectively nullified. Given the resource constraints in our criminal justice system, it would be too risky for the Crown to seek such remedies because in so doing, they would invariably run the risk of exceeding the Jordan ceiling. In addition, defence counsel would obtain a tactical advantage that would lead to applications for extraordinary remedies and appeals therefrom being undertaken as a matter of course. Unless the Crown could prove that the defence engaged in a deliberate and calculated tactic employed to delay the trial, the defence could seek extraordinary remedies with impunity and make it very difficult to meet the Jordan timelines. Such a result is obviously contrary to what Jordan was designed to achieve.

78Thus, if the time spent seeking extraordinary remedies should not be automatically excluded from or included in the Jordan delay calculation, there must be some method of evaluating whether these periods should be included in a given case. In Jordan, at para. 69, the court carved out an exception for exceptional circumstances that lie outside the Crown's control, "in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise". The court went on to state that "the determination of whether circumstances are 'exceptional' will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases".

79In my view, in a case where the Crown has brought a certiorari application and/or appealed from a decision granting or refusing certiorari resulting in net delay that exceeds the Jordan ceiling, it should be open to the Crown to argue that such delay constitutes a discrete event. In reaching that conclusion, I recognize that such cases do not fit neatly within the examples of discrete events provided by the court in Jordan and subsequent jurisprudence. It could also be said that an application for extraordinary remedies is not outside the control of the Crown as it could always simply decline to bring the application.

80I believe that is too narrow an approach to discrete events. A Crown has an obligation to take such steps as required to fulfill his or her duties in the prosecution of a case, the same way defence counsel must take all reasonable steps to make full answer and defence on behalf of his or her client. Where the Crown has a reasonable basis for seeking such remedies, it should not be automatically forced to abandon its obligations for fear of a s. 11(b) application. In that sense, an application for extraordinary remedies is not within the control of the Crown; rather, it is something that arises on occasion in the circumstances of a given case and must be undertaken in order for a Crown to fulfill his or her professional obligations.

81It must also be recognized that the Supreme Court did not consider the impact of extraordinary remedies on the Jordan framework and that in providing a carve out for exceptional circumstances the court explicitly chose to grant flexibility for future courts in the application of the framework. Moreover, the use of the discrete event exception in this manner is consistent with the public policy imperatives animating the Jordan decision. It ensures that the parties are acting in a manner that respects the right of the accused to be tried within a reasonable timeframe.

82The next issue is what test should be employed by an application judge in considering whether the delay occasioned by the Crown in pursuit of extraordinary remedies and appeals therefrom fits within the definition of a discrete event. In my view, the best approach is to mirror the analysis undertaken when examining defence delay. The application judge's role in that analysis is not to second-guess the defence's decision to pursue actions designed to make full answer and defence. Rather, the application judge shall intervene only where the defence is not fulfilling its Jordan imposed obligations because it is engaging in deliberate and calculated tactics aimed at causing delay. Similarly, in determining whether delay caused by a Crown application should be excluded from the delay calculation, the reviewing judge must recognize the Crown's discretion to take such steps and limit the analysis to a consideration of whether the Crown's actions were frivolous, undertaken in bad faith, or executed in a dilatory manner. A frivolous application is one which has no arguable basis. Again, by conducting the analysis on this basis, the court is fulfilling its Jordan imposed obligation of ensuring that all justice participants are acting responsibly and ensuring that the accused's right to be tried within a reasonable time is respected.

83With regard to defence applications, where they are frivolous or made in bad faith, they will generally constitute defence delay. Where they are brought in good faith, they constitute an exceptional circumstance because they would be outside of the control of the Crown, unless in opposing such an application or an appeal therefrom the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner.

(e) Application to the Case at Bar

84The appellant submits that the Crown should have proceeded with a trial for second degree murder from the outset and had it done so, three years would not have been wasted pursuing a frivolous argument.

85The Crown's theory supporting its submission that the appellant should be committed on first degree murder was that he could be liable for constructive first degree murder on the basis of forcible confinement. It relied on s. 231(5) of the Criminal Code, which elevates murder to first degree murder if the death is caused by the accused "while committing or attempting to commit" any of a series of listed offences, including forcible confinement. The Crown sought to combine that section with s. 21(2), which defines parties to an offence on the basis of common intention to carry out an unlawful purpose and to assist each other therein. In that regard, the Crown relied on R. v. Ceballo, [2007] O.J. No. 3977, 2007 ONCA 715, where this court observed, at para. 2, that it is "an open question of law" whether ss. 21(2) and 231(5) could be combined as a basis for first degree murder committed in the course of a robbery and forcible confinement. The specific argument advanced in the case at bar was that there was evidence available for the trier of fact to conclude that the appellant was a party to the forcible confinement of Mr. Swan, that the confinement was causally and temporally linked to the murder, and that the appellant was the substantial cause of Mr. Swan's death.

86The appellant counters that binding jurisprudence foreclosed this argument, including R. v. Harbottle, [1993] 3 S.C.R. 306, 1993 CanLII 71 (SCC). In that case, Cory J., writing for the court, found that in interpreting what is now s. 231(5), a restrictive test of substantial causation should be applied, which "requires that the accused play a very active role -- usually a physical role -- in the killing".

87In addition, the appellant submits that the release of R. v. Ferrari, [2012] O.J. No. 2649, 2012 ONCA 399, made it very clear that the argument could not succeed. In that case, Rosenberg J.A. writing for this court considered the interaction between ss. 21(2) and 231(5) and stated, at paras. 68-69:

Thus, despite this court's decision in Richardson, it is my view that the question of liability for first degree murder under s. 231(5) based upon s. 21(2) is an open one. That said, however, I am satisfied that the two provisions can be combined. While liability for first degree murder under s. 231(5) is premised on active participation in the murder, that liability flows from the participant's acts not any additional mental element. Provided the participant's conduct was a substantial cause of the death and the other elements of s. 231(5) are made out including liability for murder and the underlying crime, such as forcible confinement, the accused can be found guilty of first degree murder.

It is true, as this court pointed out in Jackson, that an accused can be convicted of murder under s. 21(2), even though he did not participate in the act which caused death. In such a case, he could not be convicted of first degree murder under s. 231(5), not because the underlying liability for murder was premised on s. 21(2), but because the Crown was unable to prove that the party's participation was a substantial cause of the death of the victim.

88In the present case, I accept that the appellant had the better argument in regard to his potential liability for first degree murder. However, the issue is not who had the better argument, but whether the Crown's position was frivolous.

89At the time of the Crown's initial certiorari application, Ceballo and Ferrari left the door open for the combination of ss. 21(2) and 231(5) as a basis of first degree murder. As this court stated in Ceballo, it was an open question whether ss. 21(2) and 231(5) could be combined as a basis for first degree murder. That question was answered in the affirmative in Ferrari, with the court finding that the sections could be potentially combined depending on the circumstances of the alleged involvement in the killing.

90The weakest part of the Crown's argument was the degree of the appellant's involvement in the killing of Mr. Swan. He certainly did not play a physical role as contemplated in Harbottle. However, it must be remembered that Harbottle did not mandate a hard and fast rule that an accused must play a physical role in the killing.

91While not a strong submission, I am satisfied that it was arguable and not frivolous to suggest that the appellant could be liable for constructive first-degree murder. It was, after all, an argument that found favour with the judge reviewing the initial preliminary inquiry judge's decision, the judge on the second preliminary inquiry, and the judge reviewing a subsequent defence certiorari application. There is also no suggestion that the Crown was acting in bad faith or that it was dilatory in proceeding with its application for certiorari.

92With respect to the defence certiorari proceeding and appeals, again the Crown did not take a frivolous position on the merits. There is also no suggestion that the Crown acted in bad faith in opposing the appeals or was dilatory in responding to them. To the contrary, the Crown acted responsibly and with due regard to the appellant's constitutional rights in ultimately proceeding on second degree murder.

93Consequently, I conclude that the time taken for the Crown's application and the time taken for the defence application and abandoned appeal are discrete events totalling 46.9 months. This reduces the total period of delay to 22.4 months, well below the 30-month Jordan ceiling. In addition, I agree with the trial judge's conclusion that a further six-month deduction should be made to reflect events impacting on the trial judge's availability, along with time lost at the preliminary inquiry and at trial due to the refusal of witnesses to testify. On this basis, I would dismiss the appeal of the trial judge's s. 11(b) ruling.

94In the alternative, I agree with and adopt the trial judge's analysis of the application of the transitional provisions. The time this case took was justified based on the parties' reasonable reliance on the law as it previously existed. This was a case with challenging legal issues, no evidence of prejudice, a limited impact on the appellant's liberty interests and significant societal interest in seeing the accused, who was charged with a very serious offence, being brought to justice. Therefore, I would also dismiss the appeal of the trial judge's s. 11(b) ruling on the basis of the transitional provisions under Jordan.

(4) Sentence Appeal

95Given my finding that a new trial is required, it is unnecessary to consider the sentence appeal.

E. Disposition

96In the result, I would order a new trial on the ground that the trial judge erred in admitting the hearsay statements in issue. I would dismiss the appeal of the trial judge's s. 11(b) ruling.

Appeal allowed.

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