COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manasseri, 2016 ONCA 703

DATE: 20160928

DOCKET: C55794 & C55719

Watt, Lauwers and Huscroft JJ.A.

BETWEEN

C55794

Her Majesty the Queen

Respondent

and

Charlie Manasseri

Appellant

AND BETWEEN

C55719

Her Majesty the Queen

Respondent

and

George Kenny

Appellant

Philip Campbell, for the appellant Charlie Manasseri

Howard L. Krongold, for the appellant George Kenny

Shawn Porter and Mabel Lai, for the respondent

Heard: January 5-7, 2016

On appeal from the convictions entered on February 29, 2012 and the sentence imposed on June 29, 2012 by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1] Brian Fudge and some friends went to a nightclub. They went there to celebrate. New Year’s Eve. And Brian Fudge’s birthday.

[2] At the bar, an older and larger man, a stranger, assaulted Brian Fudge. The man smashed Brian Fudge’s head repeatedly against the steel surface of the bar.

[3] As a result of the fracas, Brian Fudge was escorted out of the club. He left with one of his friends. Another stranger walked up to them, punched Fudge’s friend, then Fudge, who crumpled to the ground, unconscious.

[4] Brian Fudge never regained consciousness. He died the next day. He was 22 years old.

[5] Two men were charged in connection with Brian Fudge’s death.

[6] Charlie Manasseri, the man responsible for the first assault in the bar, was charged with second degree murder. George Kenny, the man who assaulted Brian Fudge and his friend outside the bar, was charged with manslaughter[^1].

[7] Manasseri and Kenny were tried together. The jury found Manasseri guilty of second degree murder and Kenny not guilty of manslaughter, but guilty of two counts of assault causing bodily harm. Both appeal.

[8] Manasseri seeks an acquittal or a new trial, primarily on the basis of fresh evidence about what caused Brian Fudge’s death.

[9] Kenny seeks a stay of proceedings because he was not tried within a reasonable time or, in the alternative, a new trial. Both appellants raise a concern with the joinder of their charges. Kenny also seeks leave to appeal the sentence imposed upon him for his convictions for assault causing bodily harm.

[10] These reasons explain why I would admit the proposed fresh evidence, allow Manasseri’s appeal from conviction, set aside the conviction and order a new trial. They also describe why I would allow Kenny’s appeal and enter a stay of proceedings on both counts of the indictment on which he was tried and convicted.

THE BACKGROUND FACTS

[11] The grounds of appeal advanced require a brief recitation of the circumstances surrounding the assaults inflicted on Brian Fudge, the medical evidence adduced at trial about the cause of death, the positions advanced by the parties at trial and the basis upon which the liability of Manasseri and Kenny was left to the jury. First, the two attacks on Brian Fudge that New Year’s Eve. The remainder later, in relation to the specific grounds of appeal.

The Preliminary Events

[12] Brian Fudge and his friends began their celebrations at Daniel Narraway’s house before heading out to Le Skratch, an Ottawa nightclub. Fudge was intoxicated when he and his friends arrived at the club. He was described as coherent, very happy and walking normally. The group sat together at Le Skratch, taking turns walking to the central elevated bar or another lower bar located on the main level to purchase drinks.

The Comment

[13] Sometime after midnight, Brian Fudge went to the central bar to order more drinks. Charlie Manasseri was at the bar along with one of his friends. Brian Fudge made a comment about being unable to get a drink because the bartender/waitress was talking with Manasseri. It is unclear whether Fudge directed this comment to Manasseri. In any event, Manasseri took objection to the remark and got very angry.

The First (Manasseri) Assault

[14] It is common ground that Charlie Manasseri, a much larger, bigger and older man than Brian Fudge, assaulted Fudge at the bar. Predictably perhaps, accounts describing the nature and extent of the assault vary substantially. Most of the witnesses who observed, or claimed to have observed the events were not completely sober.

[15] A waitress standing at the bar said that Manasseri grabbed Fudge’s head and smashed it repeatedly, as many as 10-20 times, on the metal surface of the bar. The blows were very forceful and the assault lasted about 30 seconds. One of Manasseri’s friends said he called her at 1:30 a.m. saying he had been in a fight at a bar. When he came to her place later that night he told her he had banged the head of a guy who was bothering him, while Manasseri was trying to get a drink, against the bar 3-4 times.

[16] Other witnesses claimed that Manasseri pinned Brian Fudge’s head against the surface of the bar and repeatedly punched Fudge in the head.

[17] Yet others portrayed the altercation as a grappling event, the protagonists clinching and grabbing at one another with no blows being struck on either side.

The Ejection of Brian Fudge

[18] Bar staff decided that Brian Fudge, who had a cut on his right cheek, should be ejected from the premises. After the assault by Manasseri, Brian Fudge appeared wobbly. His eyes seemed out of focus. He was intoxicated, dazed and seemed as if he were in shock. A bouncer and Fudge’s friend, Daniel Narraway, helped Fudge towards the door.

[19] Brian Fudge stopped at the coat check to pick up his winter jacket. He identified his coat but couldn’t produce the coat check receipt when asked to do so. He produced his admission ticket instead, after fumbling around in his pocket. Fudge was escorted out of the bar and turned over to other bouncers who, along with Daniel Narraway, pointed him towards the stairs that led to street level.

The Stairway Incident

[20] With Daniel Narraway’s help, Brian Fudge was able to navigate the stairs that led to street level.

[21] One witness, whose testimony was the subject of a Vetrovec caution, testified that some patron, who was neither Manasseri nor Kenny, punched or slapped Fudge very hard as Fudge descended the stairs. Narraway simply said that they were nudged at the bottom of the stairs. Fudge grabbed the stair railing to prevent himself from falling down the stairs.

The Second (Kenny) Assault

[22] Brian Fudge and Daniel Narraway stood at street level at the bottom of the stairs. Fudge was talking on his cellphone. Up the stairs, George Kenny asked a bar manager if he (Kenny) could go “finish him (Fudge) off”. The bar manager responded: “He’s off the property. It’s not my problem”.

[23] George Kenny walked down the stairs to the street. He approached Narraway and Fudge. Kenny punched Narraway with his right fist, striking Narraway on the left side of his head. Narraway braced himself before he hit the ground and got back up.

[24] George Kenny then grabbed Brian Fudge by the shirt with his left hand and punched him twice – “hockey style” – to the head. The first punch missed its target. The second connected with the left side of Brian Fudge’s face. Fudge’s knees buckled and he collapsed to the ground. On his return to the bar, Kenny boasted: “It only took one hit”.

[25] Brian Fudge lay on the ground, unconscious, his eyes closed. Daniel Narraway and another friend picked Fudge up and moved him over to a nearby planter. Narraway cradled Fudge’s head as they awaited an ambulance to take Fudge to the hospital.

The Ambulance

[26] An ambulance arrived roughly ten minutes later. The attendants found Brian Fudge unconscious. Fudge was breathing and had a pulse. His pupils were dilated and non-reactive to light. The attendants rated Fudge at 3, the lowest possible measurement on the 15-point Glasgow Coma Scale. En route to hospital, Brian Fudge’s breathing became more irregular. The attendants administered oxygen.

The Hospital

[27] On admission to hospital, those treating Brian Fudge noticed that he had minimal external injuries. He had a small abrasion on the top of his left ear and another on his upper right cheek. Each was accompanied by some bruising. Brian Fudge’s pupils remained fixed, dilated and non-reactive to light.

[28] Brain scans revealed edema, uncontrolled brain swelling. Doctors inserted a catheter to relieve the pressure.

The Death of Brian Fudge

[29] By the next afternoon, Brian Fudge was brain dead. Lifesaving efforts ceased. Brian Fudge died later that day.

THE GROUNDS OF APPEAL

[30] On their appeals from conviction, the appellants advance one common ground of appeal. Each alleges two further discrete grounds of appeal. Kenny also seeks leave to appeal sentence.

[31] The common ground of appeal against conviction asserts improper joinder of the counts of second degree murder and manslaughter in the same indictment contrary to s. 589 of the Criminal Code.

[32] For his part, as his principal ground of appeal, Manasseri seeks leave to introduce fresh evidence about what caused Brian Fudge to die, evidence that Manasseri says absolves him of criminal responsibility for Brian Fudge’s death. Reception of this evidence, according to Manasseri, should result in his acquittal, or at worst a new trial. He also complains about an analogy used in Crown counsel’s closing address to the jury, equating Manasseri’s assault of Fudge with blows being struck by a baseball bat-wielding assailant. The analogy, he says, was seriously misleading, inflammatory and left uncorrected by the trial judge.

[33] As for Kenny, his chief grievance is that he was not tried within a reasonable time as required by s. 11(b) of the Charter. He says the application judges who ruled on his two s. 11(b) applications, were wrong in failing to find an infringement and order a stay of proceedings. In written submissions, Kenny also took issue with the trial judge’s Vetrovec instruction in relation to one prosecution witness. Lastly, Kenny argues that his sentence of two years less a day, in addition to pre-sentence custody, was not only manifestly unfit, but demonstrates errors in principle, through improper assessment of the exceptional trial delay and the blameworthiness of the offence. He seeks to file fresh evidence in support of his sentence appeal.

THE APPEALS FROM CONVICTION

[34] I turn first to the ground of appeal common to both appellants – the joinder/severance issue.

THE COMMON GROUND: JOINDER AND SEVERANCE

[35] Kenny contends that he and Manasseri should not have been tried together. Manasseri agrees.

[36] The alleged error relates to the joinder of the count of second degree murder against Manasseri and manslaughter against Kenny in the same indictment. They argue the joinder was improper because the manslaughter count did not arise out of the same transaction as the count that charged second degree murder. As a result, the joinder contravened the general prohibition in s. 589 of the Criminal Code, R.S.C. 1985, c. C-46, which states that “no count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder”, and fell outside the exception in s. 589(a), which allows joinder where the count that charges the offence other than murder “arises out of the same transaction”.

[37] A snapshot of the procedural history of the prosecution and the circumstances in which joinder occurred will provide a suitable backdrop for what follows.

The Procedural History

[38] Within days of Brian Fudge’s death, Charlie Manasseri was charged with second degree murder. In a separate information, police charged George Kenny with assault causing bodily harm, in respect of Daniel Narraway, and assault in relation to Brian Fudge. The Crown elected to proceed by summary conviction on both assault counts.

[39] The charge selection in connection with Kenny was based on descriptions of the assaults at street level and the results of the blows he inflicted on Narraway and Fudge. The medical opinion from the examining pathologist, Dr. Ayroud, was that Kenny’s blow did not contribute to Brian Fudge’s death, although it may possibly have accelerated his demise.

[40] About 15 months later, three weeks before Kenny’s summary conviction trial was to begin, the Crown advised counsel that Kenny would be charged with manslaughter and joined with Manasseri, who was then charged with second degree murder, in the same information. Kenny and Manasseri remained jointly charged co-accused for the balance of the proceedings.

[41] The basis upon which Kenny’s charge was upgraded from assault to manslaughter was a report prepared by another pathologist, Dr. Dexter, who had reviewed the findings of Dr. Ayroud, the pathologist who had conducted the post-mortem examination on Brian Fudge. This second report confirmed several findings initially conveyed to police by Dr. Ayroud. No physical evidence confirmed a second blow. It was possible that a second assault contributed to Brian Fudge’s death, but also possible that it had made no such contribution. But the major component of the brain damage occurred in the first assault. The Crown took the position that Dr. Dexter’s opinion had changed the state of the evidence with respect to the causal link between Kenny’s alleged unlawful act and Brian Fudge’s death.

The Positions of the Parties at Trial

[42] Both Manasseri and Kenny filed pre-trial motions for severance. They invited the trial judge to sever the count charging Kenny with manslaughter from the count charging Manasseri with second degree murder and to order separate trials for each.

[43] The principal basis upon which the severance was sought was that the joinder was barred by s. 589 of the Criminal Code. The two assaults were separate and independent of one another. The count that charged manslaughter did not arise out of the same transaction as the count that charged second degree murder. Neither accused was a party to the other’s assault. There was no legal or factual nexus between the assaults. Indeed, a panel of this court had characterized them as separate transactions on an appeal in earlier extraordinary remedy proceedings.

[44] In the alternative, each sought an order for severance under s. 519(3) of the Criminal Code, invoking the factors enumerated in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, in support of their argument.

[45] The trial Crown characterized both assaults as part of the same transaction. Each was a party to the other’s assault. There was a commonality of time and space between the two incidents. Thus, the trial Crown contended, s. 589 did not prohibit joinder of the murder and manslaughter counts.

[46] The trial Crown argued that separate trials were not in the interests of justice. After all, the nub of the case involved an assignment of criminal responsibility for the unlawful death of Brian Fudge. In practical terms, this required a trier of fact, a single trier of fact, to determine whether each assault was a significant contributing cause of Brian Fudge’s death. This issue was ideally allocated to a single trier of fact, not two different triers of fact.

The Ruling of the Trial Judge

[47] The trial judge rejected the submission that the joinder of the count of manslaughter with that of murder contravened, or was not authorized by s. 589: with reasons reported at 2011 ONSC 4128.

[48] The trial judge considered the meaning to be assigned to the term “transaction” in s. 589(a). She concluded that, despite its use elsewhere, for example in ss. 548 and 581 of the Criminal Code, “transaction” had no fixed or invariable meaning. Its meaning depended on the context in which it was used. Whether two counts arose out of “the same transaction” required a case-specific analysis of their circumstances.

[49] In this case, the trial judge reasoned, the conduct that grounded the counts occurred within minutes and at locations a few feet away from one another. There was a causal link between the two assaults, both factual and legal. Each assailant was a party to the other’s assault. The issue that united the two events as part of the same transaction was causation. The issue for the trier of fact was whether one, the other, or both assaults were a significant contributing cause of Brian Fudge’s death.

[50] The trial judge rejected the appellants’ submission that this court had already decided on the certiorari appeal that the assaults were not part of the same transaction. That appeal was concerned with whether the evidence adduced at the preliminary inquiry satisfied or fell short of the standard required for committal on the offences alleged against each appellant. The propriety of joinder, more accurately, whether the manslaughter count arose out of “the same transaction” as the murder count, was not before the court on the certiorari appeal, thus was not decided there.

[51] After deciding that s. 589(a) did not bar joinder, the trial judge declined to order severance under s. 591(3). Joinder imposed no inappropriate constraint on the conduct of the defence of either accused. The complexity of the evidence did not support severance since it was the nature of evidence, not whether there were one or two trials that controlled. The duplication of witnesses was unnecessary and the prospect of inconsistent verdicts on separation was undesirable. The factual and legal nexus between the assaults and the offences warranted a single trial.

The Arguments on Appeal

[52] Kenny confined his submissions to the propriety of the joinder under s. 589. He submitted that Parliament’s intention in enacting s. 589(a) was to permit joinder of offences, other than murder, with a count or counts charging murder, provided those other offences occurred at the same time and as part of the same incident as the murder. For example, a sexual assault or unlawful confinement which occurred contemporaneously with the murder, thus resulting in its classification as first degree murder under s. 231(5).

[53] Kenny reinvigorates the argument advanced at trial that this court on the certiorari appeal decided that the two assaults were separate and independent, the one from the other, and thus did not arise out of the same transaction. It follows, so says Kenny, that the inclusion of the manslaughter count in the same indictment as the count charging Manasseri with murder was not authorized by s. 589(a).

[54] What is more, Kenny continues, no legal connection exists between the two counts. Neither Kenny nor Manasseri is a party to the other’s assault. The evidence cannot sustain a claim of a joint venture. No evidence suggests that Kenny was aware of Manasseri’s assault or that Kenny intended to assist Manasseri in it. Nor was there any evidence that could reasonably support a conclusion that Manasseri was an aider or abettor of Kenny’s assault.

[55] The respondent rejects any suggestion of improper joinder. The counts were closely connected factually and legally, were part of the same transaction and thus were properly joined in the same indictment under s. 589(a).

[56] To interpret s. 589(a), the respondent says, in particular, to determine the meaning of “arises out of the same transaction”, we must consider the modern approach to statutory interpretation, including the grammatical and ordinary meaning of the words in the section; its legislative history; the intention of Parliament; the scheme of the Criminal Code itself; and the legislative context.

[57] According to the respondent, Parliament relaxed the former absolute prohibition against joinder of non-murder counts with counts charging murder after the decision in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636. In the result, Parliament permitted joinder, provided the murder and non-murder counts were part of “the same transaction”. The concern was to ensure that the focus of the attention of the trier of fact remained on the murder count, but to permit a degree of diversion where the facts underlying the non-murder count were substantially the same as those underpinning the murder charge. The joinder here is consistent with Parliament’s intention.

[58] The respondent contends that the propriety of the joinder in this case also finds support in the meaning of the term “transaction” as it is used in s. 589(a). The term is, by nature, one that means different things in different contexts. What it means in one context, as for example in s. 548(1) of the Criminal Code, should not be transported indiscriminately to s. 589(a).

[59] To determine whether a non-murder count arises out of “the same transaction” as a murder count for the purposes of s. 589(a) requires a case-specific analysis of all the circumstances. Here, the circumstances reveal:

i. a close connection in time and space between the incidents;

ii. a factual connection; and

iii. a legal connection.

According to the respondent, in combination, these circumstances lead to the conclusion reached by the trial judge that the two counts arose out of “the same transaction”.

[60] The respondent rejects the appellants’ claim that references to “two separate transactions” and “two separate and independent assaults” in the reasons of this court on the certiorari appeal are dispositive of this issue in the appellants’ favour. The decision on the certiorari appeal related to the issues before the court on that appeal. Whether joinder of the manslaughter and murder counts was permitted or prohibited by s. 589(a) was not an issue on that appeal. What that court was required to decide, and did decide, was whether there was sufficient evidence of identity to order Kenny’s committal and of causation to order Manasseri’s committal.

[61] The respondent advances an alternative argument in the event that we find that the joinder of the murder and manslaughter counts in the same indictment was not authorized by s. 589(a). An erroneous decision on this issue is a decision about severance. Such an error can and should be cured by application of the proviso in s. 686(i)(b)(iv). The error is a procedural irregularity. The trial court was properly constituted. Neither appellant was prejudiced. Indeed, each needed the other to advance his case denying criminal responsibility for Brian Fudge’s death.

The Governing Principles

[62] The principles that inform our determination of this ground of appeal are those that explain the reach of the joinder rule enacted by s. 589, more specifically, the “same transaction” exception in s. 589(a). As we shall see, it is a provision that appears to have escaped appellate scrutiny by this Court, but not the analysis of trial courts.

The Section

[63] Section 589 of the Criminal Code states that:

589. No count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder unless

(a) the count that charges the offence other than murder arises out of the same transaction as a count that charges murder; or,

(b) the accused signifies consent to the joinder of counts.

[64] Section 589 is an exception to the general rule of joinder in s. 591(1) that any number of counts for any number of offences may be joined in the same indictment.[^2]

[65] In general terms, the exception created by s. 589 is preclusive: it prohibits joinder in the same indictment of counts charging murder, with those charging offences other than murder. But the prohibition against joinder is not unyielding. Joinder of murder and non-murder counts is permissible in two instances:

i. where the indictable non-murder count arises out of the same transaction as the murder count; or

ii. where the accused consents to joinder of the counts.

Even where joinder is permissible, however, as for example under the “same transaction” exception in section 589(a), the severance of counts, accused or both may still be ordered where it is in the interests of justice to do so under s. 591(3).

[66] Prior to January 17, 1991 the prohibition enacted by the opening words of s. 589 brooked no exception. No count charging an offence other than murder could be joined in the same indictment as a count charging murder. Full stop. It was of no moment that the non-murder count, say attempted murder of another, arose out of the same transaction as the count of murder. Likewise, it mattered not a whit that an accused wanted the murder and non-murder counts tried together.

The Rationale for the “same transaction” Exception

[67] The purpose of the “same transaction” amendment, according to the Parliamentary Secretary of the then Minister of Justice and Attorney General of Canada, was to permit the inclusion of other offences, such as sexual assault and robbery, during the commission of which a person was killed: R. v. Riley (2008), 2008 CanLII 8787 (ON SC), 229 C.C.C. (3d) 266 (Ont. S.C.), at paras. 12-13; R. v. Jackson, (2007) 2007 CanLII 246 (ON SC), 230 C.C.C. (3d) 569 (Ont. S.C.), at para. 13, aff’d 2013 ONCA 445. As noted by the Parliamentary Secretary to the Minister of Justice, the inclusion of these offences in the same indictment as a count charging murder permits a single trial to determine criminal liability for every crime arising out of the same incident, by providing “that all offences arising out of the same incident may be tried together”, and improves the fact finding process: House of Common Debates, (1 June 1990), at 12164 (Rob Nicholson).

The Meaning of “arises out of the same transaction” in s. 589(a)

[68] The principles of modern statutory interpretation govern our assignment of meaning to Parliament’s language choice in the “same transaction” exception of s. 589(a). Those principles require us to read the words Parliament has used in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament: R. v. Borowiec, 2016 SCC 11, at para. 18.

[69] The term “transaction” occupies a place of prominence in the “same transaction” exception of s. 589(a). A word of quite comprehensive import, evasive of precise legal definition, “transaction” takes its meaning from the statutory context in which it appears and as the justice of each case demands, rather than by any abstract definition: R. v. Canavan and Busby, 1970 CanLII 319 (ON CA), [1970] 5 C.C.C. 15 (Ont. C.A.), at p. 18, leave to appeal to S.C.C. refused, [1975] 5 C.C.C. 22 n. See also, R. v. Melaragni (1991), 1991 CanLII 11738 (ON SC), 72 C.C.C. (3d) 339 (Ont.Ct.(G.D.)), at p. 344. Sometimes, “transaction” is accorded a narrow or restrictive meaning. On other occasions, a broad or expansive connotation applies: Melaragni, at p. 344.

[70] In its grammatical and ordinary sense, the noun “transaction” refers to a physical operation, an action or process. The adjective “same” refers to something that is identical with something else. The grammatical and ordinary sense of the words “same transaction” in s. 589(a) would seem to support the conclusion that Parliament intended that the murder and non-murder counts have their origin in the same incident or event.

[71] The term “transaction”, as well as the phrase “same transaction”, are not indigenous to s. 589(a) of the Criminal Code. They dwell elsewhere. For example, “transaction” appears as part of the phrase “a single transaction” in s. 581(1), one of several general provisions prescribing the content of counts contained in an indictment. The phrase “same transaction” appears as part of “in respect of the same transaction” in s. 548(1)(a) which defines the scope of committal authority at the conclusion of a preliminary inquiry. The same phrase is central to “arising out of the same transaction” in s. 606(4), which permits entry of guilty pleas to offences other than those charged in the indictment.

[72] As used in s. 589(a), both “transaction” and “the same transaction” have encountered limited judicial scrutiny, particularly by this Court. Not so in connection with ss. 581(1) and 548(1)(a), which have been the subject of considerable judicial consideration in Ontario.

[73] In s. 581(1), the term “transaction” and the phrase “a single transaction” are not synonymous with a single occurrence or event. Separate acts, which are successive and cumulative and which comprise a series of acts, can be considered “a single transaction” for the purposes of s. 581(1): R. v. Flynn 1955 CanLII 126 (ON CA), [1955] O.R. 402 (C.A.), at p. 411; R. v. Hulan, 1969 CanLII 306 (ON CA), [1970] 1 C.C.C. 36 (Ont. C.A.), at p. 44; Canavan, at p. 18; and R. v. S.(H.S.), 2009 ONCA 102, 242 C.C.C. (3d) 262, at para. 19.

[74] In section 548(1)(a), “transaction” in the phrase “arising out of the same transaction” has been defined as a series of connected acts extending over a period of time. The acts must be connected or related in order to constitute a “transaction”: R. v. Goldstein (1988) 1988 CanLII 7069 (ON CA), 42 C.C.C. (3d) 548 (Ont. C.A.), at p. 554, leave to appeal to S.C.C. refused, [1988] S.C.C.A. No. 286.

[75] Although the term “transaction” does not appear in s. 231(5) of the Criminal Code, the authorities have required that a murder be committed in the course of a predicate offence, for example unlawful confinement, such that the series of events may be characterized as a “single transaction” in order that the murder be classified as first degree murder: R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, at pp. 318-319; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 27; R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74, at p. 86. This requirement emerges from the “while committing or attempting to commit” language in s. 231(5).

[76] As we have already seen, the context in which a word is used in a statute is also important in determining its meaning. In this respect, some contextual similarity exists between the committal authority of s. 548(1)(a) and the joinder authority of s. 589(a). Each section serves to define the extent of an accused’s potential jeopardy at trial. A similar affinity exists with the “single transaction” element of constructive first degree murder under s. 231(5).

The Principles Applied

[77] As I will explain, I would not give effect to the submission that the joinder of the murder and manslaughter counts was not authorized by s. 589 of the Criminal Code.

[78] My first reason has to do with the meaning to be assigned to the term “transaction” in the clause “arises out of the same transaction” in s. 589(a).

[79] It is neither necessary nor desirable for my purposes to essay an exhaustive definition of the term “transaction” as it appears in s. 589(a). Nor is it necessary to strictly import the interpretations that have been offered in relation to other provisions. It is enough to say that a “transaction” is not confined to a single event or occurrence. Rather, the term, almost inherently, can and does embrace a series of connected acts or events that extend over a period of time. In this case, although discrete events committed by different people, they reveal an underlying factual, legal and temporal unity that permits them properly to be labeled as part of “the same transaction”.

[80] Second, a related point. Common sense should be our guide in deciding whether separate acts or events can comfortably wear the clothes of “the same transaction”. These events should not be subjected to metaphysical examination, artificial contraction or unreasonable expansion to force upon them a different complexion than they, in their totality, otherwise display. Nor should the propriety of joinder be dictated by expert medical opinion about the relative impact of discrete blows on what caused a deceased to die. Such evidence is no more dispositive on the issue of the propriety of joinder than it is on the cause of death.

[81] Third, the fundamental issue in this case was one of criminal responsibility. Who was legally responsible for the unlawful killing of Brian Fudge? Anyone who did anything unlawful that was a significant contributing cause of Brian Fudge’s death was criminally responsible for it, the level of culpability depending on the person’s state of mind at the time of his unlawful conduct.

[82] Charlie Manasseri and George Kenny unlawfully assaulted Brian Fudge. First, Manasseri. Then, Kenny. Minutes apart. Feet away. After the second assault, Fudge crumpled to the ground. Unconscious. He died the next day from a head injury. Either or both of Manasseri and Kenny were responsible. Causation was a matter of some complexity. But the legal standard for criminal responsibility – a significant contributing cause - provided the necessary legal and factual connective to warrant joinder.

[83] Finally, I do not endorse the appellants’ submission that the decision of this court differently constituted on the certiorari appeal determined that the two assaults were separate transactions, thus could not be joined together as counts of manslaughter and murder under the “same transaction” exception in s. 589(a).

[84] On the certiorari appeal, no issue of joinder arose. The issue there was whether there was any evidence adduced at the preliminary inquiry upon which the preliminary inquiry judge could conclude that a reasonable jury, properly instructed, could convict each of the offence with which he was charged. No question of joinder was raised. Nor decided.

[85] Neither appellant challenged the correctness of the trial judge’s ruling refusing severance under s. 591(3) of the Criminal Code. Nothing more need be said about it here.

MANASSERI’S APPEAL FROM CONVICTION

[86] Manasseri raises two discrete, unrelated grounds of appeal. He seeks an acquittal or new trial. Neither ground, whether successful or unsuccessful, has any implication for Kenny’s appeal from his conviction.

Ground #1: The Baseball Bat Analogy

[87] This ground of appeal takes issue with a portion of the trial Crown’s closing address to the jury, the trial judge’s failure to provide a corrective instruction and the imputed impact of the analogy on the verdict of the jury.

The Factual Background

[88] Some context to begin.

[89] Charlie Manasseri was charged with second degree murder. Among other things, this required the Crown to prove that Manasseri’s state of mind when he unlawfully killed Brian Fudge coincided with the requirements of s. 229(a) of the Criminal Code. That he meant to cause death, or meant to cause bodily harm that he knew was likely to cause Fudge’s death and was reckless whether death ensued or not. To establish this essential element, the Crown relied on inferences from the evidence describing the number and nature of the blows Manasseri inflicted on Fudge at the bar.

The Initial Assault

[90] The evidence about Manasseri’s assault on Brian Fudge at the bar was far from uniform. In some respects, it was at odds with Fudge’s physical appearance thereafter, especially with the paucity of visible external injuries.

[91] The trial Crown relied on the testimony of witnesses who described Manasseri as repeatedly and forcefully smashing Brian Fudge’s head against the hard, unyielding metal surface of the top of the bar. This, the trial Crown submitted, along with some of Manasseri’s accompanying remarks, supported an inference that Manasseri intended to kill Fudge, or at least to cause him bodily that Manasseri knew was likely to kill Brian Fudge and was reckless whether Fudge died or not.

The Directed Verdict Application

[92] Trial counsel for Manasseri sought a directed verdict of acquittal on second degree murder, leaving the jury to determine only whether Manasseri was guilty of manslaughter. Counsel argued that the evidence could not support a finding of either mental or fault element necessary to permit a verdict of guilty of second degree murder to be rendered.

[93] During the argument of that motion, the trial judge likened the repeated blows described by some witnesses to those inflicted by a baseball bat-wielding assailant in terms of the inference about the intent of the person striking the blows. The trial Crown picked up on the analogy and incorporated it into his closing address to the jury.

The Closing Address of the Crown

[94] During his closing address to the jury, the trial Crown said:

When you consider how this fact might assist you in determining Mr. Manasseri’s intent for murder, consider this: this is no different than had Mr. Manasseri taken a solid piece of metal, perhaps a metal baseball bat, and repeatedly and forcefully struck Brian in the head with it.

[95] Trial counsel for Manasseri did not object to the trial Crown’s use of this analogy or seek any remedial instruction on the specific passage excerpted in the preceding paragraph.

The Charge to the Jury

[96] In her charge to the jury, the trial judge made no mention of this portion of Crown counsel’s closing address. She did not include it in her recital of the position of the Crown. She did review the various descriptions of the nature of the altercation between Manasseri and Brian Fudge, but did so without comment.

[97] The trial judge explained the mental or fault element the Crown was required to establish beyond a reasonable doubt before the jury were entitled to convict Manasseri of murder. Her instructions tracked the standard language used in this province and elsewhere on this issue. She referred to the nature of the assault as a factor to consider in deciding whether the required state of mind had been established:

In determining Charlie Manasseri’s state of mind, you will want to consider the nature of the assault, in particular the following:

The force used, or lack thereof;

The manner of the assault; was Fudge’s head banged on the bar or was he punched;

The fact that witnesses noted that Fudge was intoxicated;

The fact that his blood-alcohol level was close to three times the legal limit;

The fact that Fudge was 22 at the time of his death, and he was five feet eight inches tall and weighed approximate 150 pounds;

The fact that Manasseri was in his early forties, is five feet eleven inches tall, and weighed 245 pounds.

What led up to the assault, and what occurred after; words used by either or both Manasseri and Fudge, and;

The evidence of Cathy Gervais that Manasseri was drunk.

The Arguments on Appeal

[98] In this court, Manasseri described the impugned passage in Crown counsel’s address as one that presented a powerful image and a potent argument in favour of the finding that the mental or fault element in murder had been proven beyond a reasonable doubt. But the argument, Manasseri urges, is seriously misleading and inflammatory.

[99] The analogy, the argument continues, is strongly suggestive of an intent to kill. Indeed, it presented an almost archetypal example of such an intent. But the analogy was at once inappropriate and extremely harmful in its application to a case such as this, where the case for the Crown on this issue was very weak. The verdict rendered establishes the contaminating influence of the analogy.

[100] The respondent points out that, in his closing address to the jury, the trial Crown relied on five factors to establish the mental or fault element in murder:

i. the repeated blows Manasseri inflicted to Brian Fudge’s against the metal bar surface;

ii. the location of the blows to the head, a vital and vulnerable part of the body;

iii. the fact that the deceased was highly intoxicated when the blows were struck, increasing his vulnerability and their effect;

iv. the physical disparity between Manasseri and Fudge; and

v. Manasseri’s comment about “finishing it off” outside.

[101] The respondent reminds us that the Crown is entitled to argue its position before the jury forcefully, effectively and fairly. Some rhetorical passion is not off-limits to the Crown. The most telling circumstance, that what occurred here was not beyond the pale or productive of the great mischief now advanced, is that trial counsel registered no complaint about the substance of the analogy or the manner in which it was expressed.

The Governing Principles

[102] A few brief points about the closing address of Crown counsel will provide the necessary structure for the assessment of this ground of appeal.

[103] First, Crown counsel is entitled to advance her case forcefully in closing argument in a jury trial. But in doing so, Crown counsel must eschew inflammatory rhetoric, demeaning commentary, sarcasm or legally impermissible submissions that undermine the degree of fairness which is the quintessence of our criminal trial: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340.

[104] Second, closing addresses are exercises in advocacy. Crown counsel is an advocate, but one who occupies a special position in the prosecution of criminal offences. That special position excludes any notion of winning or losing and must always be characterized by moderation and impartiality. The Crown must limit his or her means of persuasion to facts found in the evidence adduced before the jury: R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 21 and 24; R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 107; R. v. A.T., 2015 ONCA 65, 124 O.R. (3d) 161, at para. 26.

[105] Third, as an advocate, Crown counsel is expected to be rigorous but fair, persuasive but responsible. Murder trials are not tea parties. Nor are they unregulated: R. v. Hurd, 2014 ONCA 554, 312 C.C.C. (3d) 546, at paras. 32-34.

[106] Fourth, when complaints are made that the closing address of Crown counsel exceeded permissible limits, the critical issue is whether what was said deprived an accused of a fair trial: R. v. Romeo, 1991 CanLII 113 (SCC), [1991] 1 S.C.R. 86, at p. 95; Hurd, at para. 34. To determine this issue, an appellate court must consider what was said in the milieu in which it was said: the context of the entire trial; the impugned remarks; and the nature and extent of any judicial response: A.T., at para. 31.

[107] Finally, the relevance of the failure of trial counsel for an accused to object to what is argued, on appeal, to have been wrongly said at the trial. Failure to object erects no unscalable barrier to appellate success. A factor. Yes. A bar. No: A.T., at para. 30.

The Principles Applied

[108] I would reject this ground of appeal. Several reasons persuade me that it is unavailing.

[109] First, while the analogy was ill-advised, not to mention inapt, we must credit the jurors with common sense in evaluating the legitimacy of this complaint.

[110] When a criminal trial begins, a trial judge tells jurors what is evidence for them to consider. The judge also explains what does not constitute evidence. Like what the lawyers and the judge say in the courtroom as the case proceeds. Addresses. Questions. Objections. These are not difficult concepts. They are well-understood by jurors who do not park their common sense at the courtroom door upon selection.

[111] Further, the same common sense, it seems to me, would tutor jurors about the inapt nature of the analogy. A swing with a baseball bat is scarcely a punch in the head. Nor is it equivalent to a head being smashed down onto a hard flat surface.

[112] Second, and in any event, the impugned comment was not a prominent feature of the trial Crown’s closing address. It was simply an analogy, which, unlike the other factors advanced by the Crown on this issue, was not the subject of evidence at trial.

[113] Third, the analogy was not included in the trial judge’s charge either in connection with her review of the evidence adduced at trial or as a component of the position of the Crown on proof of the mental or fault element necessary to prove that Manasseri committed murder.

[114] Fourth, that an expert would not give such an analogy in testifying before a jury, for fear of misleading the jury about the extent of force used or its relevance on the issue of state of mind, is not dispositive of the propriety of the analogy. For one is a question of admissibility, the other involves an assessment of the impact of an advocacy technique.

[115] Although I do not consider this aspect of the trial Crown’s closing caused an unfair trial or a miscarriage of justice, I would add a word of caution. Analogies are not forbidden in an advocate’s closing address. But they must be apt. Not inflammatory. Not misleading. Not invitations to speculation. Inapt analogies, in some cases, may compromise the verdict reached at trial on appellate review. The wise counsel, whether prosecuting or defending, will vet the argument by analogy with the trial judge in advance of delivery.

Ground #2: The Fresh Evidence about Cause of Death

[116] The principal ground of appeal advanced by Manasseri depends for its success on an application to introduce expert opinion evidence about a mechanism or a cause of death different than that described by the experts who testified at trial.

[117] In general terms, the expert opinion evidence adduced by the Crown at trial described a mechanism or cause of death that pointed to Manasseri as the architect of Brian Fudge’s death, not George Kenny. The verdict of the jury reflected the evidence adduced at trial: Manasseri was convicted of second degree murder. Kenny was found not guilty of manslaughter, but guilty of assault causing bodily harm.

[118] The principles that govern the reception of fresh evidence on appeal, in particular, those relating to the requirement of cogency and the influence of due diligence require a brief canvass of the evidence about causation adduced at trial, the positions of the parties, including the efforts of trial counsel to adduce expert evidence contrary to that elicited by the Crown, and how the causation issue was left to the jury.

The Cause/Mechanism of Death at Trial

[119] In general terms, the position advanced at trial was that Brian Fudge had suffered a fatal axonal injury that followed a severe impact to his head. For the most part, these injuries are caused by acceleration, then sudden deceleration of the head, often augmented by rotational forces. This pointed towards Manasseri and away from Kenny as the person criminally responsible for Brian Fudge’s death.

[120] It was uncontested that Fudge’s external head injuries were minimal. A minor abrasion and associated bruising on the left ear, indicative of blunt force trauma to the area. An abrasion with a mild underlying bruise to the upper right cheek.

The Expert Medical Evidence at Trial

[121] At trial, Crown counsel called three medical experts: a neurosurgeon; the examining anatomical pathologist; and a neuropathologist to establish that Brian Fudge died from diffuse axonal injury (DAI). This mechanism tended to point towards Manasseri as the person who caused death.

[122] Dr. Howard Lesiuk, a neurosurgeon, explained DAI as an injury caused by brain trauma that affects multiple axons through the course of the brain. The most common mechanism that produces this condition is some sort of acceleration/deceleration of the brain tissue, particularly if it includes a rotational component. These forces shear and damage the axons, sometimes tearing them apart.

[123] Dr. Lesiuk testified that the primary injury to the axons could cause secondary injuries of tissue swelling and bleeding. With swelling, internal pressure in the brain increases impairing the flow of oxygenated blood to the brain, a condition known as ischemia. In addition to ischemia, brain swelling could cause herniation which cuts off blood flow to the brain.

[124] Dr. Lesiuk attributed DAI to trauma rather than a consequence of ischemia and hypoxia. He based his conclusion on four observations:

i. subdural and subarachnoid haemorrhages in the brain indicative of brain trauma;

ii. the severity of the brain swelling;

iii. presence of petechial haemorrhages in the corpus callosum, typical of DAI; and,

iv. the distribution of tissue changes in the brain as they appeared on CT scans.

[125] Dr. Yasmine Ayroud, an anatomical pathologist, did the post-mortem examination on Brian Fudge. She considered widespread axonal injury, consistent with trauma as its source, the cause of Brian Fudge’s death. The pattern of damage to the long axons was indicative of trauma, not simply hypoxia (oxygen deprivation).

[126] Dr. Ayroud based her opinion that the DAI was the result of trauma on the totality of the evidence, including the bruise to the left ear and deep temporal muscle on the left side, subdural haemorrhage, the pattern of the damage and massive swelling of the brain.

[127] Dr. Gerrard Jansen, a neuropathologist consulted by Dr. Ayroud, reviewed the histological slides. He noted petechial haemorrhages usually seen in the cases of traumatic axonal injury. The pattern of damaged axons, as well as their location and the presence of bilateral subdural haematoma confirmed his conclusion of trauma based DAI.

[128] These experts also considered the impact of a period of lucidity following Manasseri’s assault on the validity of their conclusions. It was common ground among them that the extent of axonal injury observed here usually resulted in unconsciousness from the moment of impact. Variations existed, however. None suggested that Brian Fudge’s brief period of lucidity belied their conclusion.

The Defence Case

[129] During the preliminary inquiry, the trial Crown sought the assistance of Dr. Michael Pollanen, Chief Forensic Pathologist for the province of Ontario. The Crown wanted to retain a forensic pathologist to assist in the examination of the expert medical witnesses at trial. The Crown’s written request, dated April 25, 2007, included copies of the relevant underlying materials. Dr. Pollanen produced a report dated May 7, 2007, which the Crown disclosed to defence counsel.

[130] In his report, Dr. Pollanen discussed the post-mortem report, Dr. Ayroud’s initial opinion that the first assault caused a lethal head injury with DAI and cerebral edema; and the reviewing pathologist’s opinion, which agreed with Dr. Ayroud, but that also included the second assault as contributing to Brian Fudge’s death.

[131] Dr. Pollanen drew three conclusions about the nature of the assault and the number of blows inflicted:

i. the autopsy findings do not support the evidence of witnesses who describe the initial assault as involving multiple forceful impacts;

ii. the injuries characteristically seen with a facial assault are absent, leaving no correlation between the second assault and severe facial injuries; and,

iii. no scalp injury typical of a fall to hard ground producing the lethal injury was apparent.

Dr. Pollanen concluded that the conspicuous absence of facial injury in light of the assaults described by various witnesses seriously challenged those accounts about the events preceding Brian Fudge’s death.

[132] Dr. Pollanen offered four possible explanations for Brian Fudge’s death:

i. the concussion-alcohol hypothesis (“ACS”);

ii. the second impact syndrome hypothesis;

iii. post-traumatic cerebral edema hypothesis; and

iv. uninvestigated possibilities.

[133] In his view, ACS closely fit the parameters of this case, but most of the evidence that supports the concept is anecdotal rather than mechanistic. It is something that most forensic pathologists have observed. He gave the cause of death as “hypoxic encephalopathology and cerebral swelling in a man with head injury and acute alcohol intoxication”.

[134] Dr. Pollanen felt that he did not have satisfactory medical evidence to clearly indicate which of the two assaults actually caused Brian Fudge to die. However, Dr. Pollanen considered that there was some evidence to conclude that acute ethanol intoxication could have been a significant contributing factor in death, acting in concert with concussion.

[135] Trial counsel sought to call Dr. Pollanen as an expert witness for the defence. Dr. Pollanen demurred. It was not part of his role as Chief Forensic Pathologist to accept private retainers from defence counsel – it created a potential conflict of interest. He would respond to a subpoena. He advised defence counsel that counsel would have to retain his own forensic pathologist for an independent analysis. Dr. Pollanen was prepared to discuss the contents of his report with defence counsel and would testify as to those contents if called as a witness. Dr. Pollanen was not prepared to entertain hypotheticals over the phone. Trial counsel brought a motion to seek the Crown or the Court to call Dr. Pollanen as a witness but was not successful.

[136] As the case for the Crown concluded, trial counsel announced that he would be calling him as the only defence witness. Counsel had used Dr. Pollanen’s report to cross-examine the experts called by the Crown. Counsel sought to introduce evidence from those witnesses that ACS was a more likely mechanism of death than DAI. However, none of the witnesses for the Crown accepted ACS as the mechanism of death. As a result, during the case for the Crown no positive evidence was adduced about ACS as the mechanism that caused Brian Fudge’s death.

[137] As the trial neared its conclusion, trial counsel spoke with Dr. Pollanen in anticipation of calling Dr. Pollanen as a defence witness. Dr. Pollanen confirmed that he would not resile from his report, but would agree with any reasonable hypotheticals put to him in cross-examination. In the course of a meeting with Dr. Pollanen, the morning Dr. Pollanen was going to testify, trial counsel decided not to call Dr. Pollanen as a witness. Defence counsel became concerned that Dr. Pollanen would not vigorously defend the position he expressed in his report if called as a witness. His testimony might harm the defence position more than advance it. Additionally, by calling a witness, counsel would forfeit the right to address the jury last. In the end, trial counsel called no evidence in defence.

The Positions of the Parties at Trial

[138] At trial, Crown counsel relied on the expert opinion evidence that described DAI as the mechanism that caused Brian Fudge’s death. The Crown sought to link this mechanism of death to a particular trauma, more specifically, the Manasseri assault. Crown counsel invoked:

i. the nature of the assault, including acceleration, deceleration and rotational forces;

ii. the severity of the blows, including their number, forceful nature and the surface with which Fudge’s head came into contact; and,

iii. the insignificance of the lucid interval between the assaults in negating DAI as the mechanism of death.

[139] The Crown’s position was that the expert evidence of DAI as the most likely mechanism of death established that the attack by Manasseri was a significant contributing cause of death. The Crown took the position that Kenny’s attack accelerated the progression of that injury, and thus was a significant contributing cause of death as well.

[140] Defence counsel, having decided not to call Dr. Pollanen to give evidence about mechanism of death, was left with the expert opinion evidence called by the Crown at trial. Since the defence theory of the mechanism of death – ACS – was advanced only through the questions of counsel and not accepted in the testimony of the experts as a mechanism of death, ACS was not ultimately in play. Counsel took the position that the evidence, as a whole, did not establish beyond a reasonable doubt that Manasseri’s assault was a significant contributing cause of Brian Fudge’s death.

The Charge to the Jury

[141] In her charge to the jury, the trial judge separated out the essential elements of manslaughter (Kenny) and second degree murder (Manasseri). Among these essential elements were causation and the unlawful act requirement. In each case, the trial judge reduced the essential elements to questions, explained what Crown counsel had to prove to establish each element and reviewed the evidence that would assist the jury in deciding the question. Later, she summarized the positions advanced by counsel at trial. No objection was taken at trial or on appeal to those instructions.

The Proposed Fresh Evidence

[142] Manasseri relies upon the affidavits and cross-examinations of Dr. David Ramsay and Dr. Christopher Milroy as evidence that Brian Fudge died as a result of alcohol concussion syndrome (ACS), not diffuse axonal injury (DAI), as the experts called by the Crown had testified at trial. This mechanism, ACS, Manasseri says, is now the most credible mechanism of death, and instead points towards Kenny as the cause of Brian Fudge’s death.

[143] Manasseri also relies upon the affidavit of trial counsel to explain why evidence of ACS was not called at trial.

[144] The appellate response of the Crown includes reports from each of Dr. Pollanen and Dr. Matthew Bowes, along with their cross-examinations on those reports. The Crown’s position is that the proposed evidence is not admissible, not sufficiently cogent, and not “fresh”. The Crown says that even if ACS were the mechanism of death, it cannot exclude Manasseri’s assault as a significant contributing factor, thus could not have affected the result at trial.

The Evidence of Dr. David Ramsay

[145] Dr. David Ramsay is a neuropathologist. He began, but never completed a report for one of Manasseri’s prior counsel in early 2011. Dr. Ramsay understood that that particular counsel was dismissed or no longer required and Dr. Ramsay heard nothing further about the case.

[146] Dr. Ramsay takes issue with the trial opinions that DAI was the mechanism of death. The dominant microscopic findings were hypoxic ischemia injury to the nerve cells. Any axonal injury present was mild and likely related to the effects of hypoxia, ischemia and the swelling of Fudge’s brain. There was evidence of trauma, but the major phenomenon in the brain was related to cardiorespiratory arrest. In Dr. Ramsay’s view, if death had occurred from a traumatic axonal injury serious enough to cause the histological findings noted by Dr. Ayroud and Dr. Jansen, the collapse would have been immediate and permanent, not followed by the lucid interval that was observed here.

[147] Dr. Ramsay considered the principal neuropathologic findings (including evidence of two impacts to the head; acute bilateral, non-space-occupying subdural haematomas; acute widespread neuronal necrosis indicative of hypoxic-ischemic encephalopathology; acute severe brain swelling; and axonal injury without the characteristic haemorrhages associated with severe forms of DAI as more consistent with ACS than any other theory.

[148] Dr. Ramsay explained that ACS provides a mechanism of death when four factors coincide:

i. death;

ii. evidence of head injury;

iii. evidence of alcohol intoxication; and,

iv. the absence of any other satisfactory diagnosis.

[149] Dr. Ramsay acknowledged uncertainty about the internal physiological mechanisms that caused death in such cases, but explained that he posits a mechanism that a blow to the head affects the circuits which control heart and lung activity. This leads to death by loss of cardiorespiratory control.

[150] Dr. Ramsay concluded that ACS was the explanation that most closely fit the witness’s accounts, on the one hand, and the neuropathological findings on the other. This hypothesis suggested that Kenny’s blow triggered a cardiorespiratory arrest that led to fatal brain swelling, the function of the vital centres having been compromised by the effects of alcohol consumption. Dr. Ramsay was uncertain about whether and, if so, to what extent, Manasseri’s blows contributed to the fatal sequence of events that followed the second (Kenny) assault. He could not scientifically eliminate a contribution by the first (Manasseri’s) assault, but had no evidence that it did so.

[151] Dr. Ramsay endorsed commotio medullaris as the mechanism underlying ACS, but acknowledged that this was only a credible theory and not established to the requisite degree of certainty. It implied a relatively instantaneous trajectory from blow to collapse. Thus, he would exclude ACS as the explanation for Fudge’s death if cardiorespiratory arrest did not happen within seconds of the blow. He also accepted that there was no direct evidence of cardiorespiratory arrest after the second blow. The absence of such evidence could lead one to question ACS absent autoresuscitation, an unusual event. He pointed out, however, that every case need not follow a classic pattern.

Dr. Christopher Milroy

[152] Dr. Christopher Milroy is a forensic pathologist and current Director of the Eastern Ontario Regional Forensic Pathology Unit. To reach his conclusion about the mechanism that caused Brian Fudge’s death, he relied on the clinical and autopsy findings; especially the minor nature of the external injuries, the non-compressive subdural haematomas, the brain swelling with hypo-ischemic changes; and the APP (amyloid precursor protein), a marker of axonal damage, positivity in the brain. Dr. Milroy concluded that the principal pathology was hypoxic-ischemic damage, not DAI. What was involved in Brian Fudge’s death was hypoxic-ischemic encephalopathy, not direct trauma to the brain.

[153] Dr. Milroy emphasized the need to correlate the pathology findings with the clinical history. In other words, the eyewitness descriptions of Brian Fudge before and after the incidents were important to determine which incident caused the pathological processes in the brain, rather than relying on neuropathology alone.

[154] In this case, Dr. Milroy noted a dramatic change occurred after the second blow. Prior to the second assault, Brian Fudge was walking and talking, an event that did not coincide with the clinical picture of DAI. After the second blow, he was unconscious.

[155] Dr. Milroy considered ACS the most reasonable mechanism to explain Fudge’s sudden collapse after the second blow and his subsequent death. The second assault caused death. There was no evidence to support a conclusion that the first assault contributed to Fudge’s death. Had a sufficiently serious axonal injury occurred from the first assault, Brian Fudge would not have been able to walk, talk and function between the two assaults. He also disputed the evidence that the first assault involved 10-20 blows – the external injuries were inconsistent with such an assault.

[156] Dr. Milroy agreed that ACS is supported only by an anecdotal level of evidence. Its specific mechanisms have not been elucidated in the medical literature. He acknowledged that the presence of vital signs in Fudge after the second assault was a confounding factor in the ACS analysis. He also pointed out that autoresuscitation after cardiac arrest was possible, albeit rare. To the extent resuscitation occurs, it is usually as a result of CPR.

Dr. Michael Pollanen

[157] Counsel cross-examined Dr. Pollanen on three reports he prepared, one being his original report of May 7, 2007 and two that were in response to specific questions asked of him by appellate counsel for the Crown.

[158] Dr. Pollanen confirmed his conclusion that hypoxic encephalopathy and cerebral swelling in a man with a head injury and acute ethanol intoxication was the cause of death. Dr. Pollanen explained that “cause of death” refers to the actual physical thing that is linked to life ending, whereas “mechanism of death” refers to the process by which injury or disease causes a person to die. Dr. Pollanen agreed with Dr. Ramsay and Dr. Milroy that ACS may be the mechanism of death, but differed from them on what ACS implied. He described ACS as a syndrome with uncertain parameters but four common characteristics:

i. alcohol intoxication;

ii. head injury;

iii. collapse/death; and,

iv. no straightforward neuropathologic features to explain it.

[159] Dr. Pollanen agreed that if the theory underling ACS is commotio medullaris, he would expect immediate cessation of Fudge’s cardiorespiratory function. Autoresuscitation is at the very far end of speculation. The concept of ACS is at an anecdotal level and the exact time course, it follows, is not known. A classical presentation of ACS would have collapse follow rapidly after the fatal blow, but not to the exclusion of a series of blows. His opinion on ACS is not altered by timing issues as he has not relied on the timing of ACS to give his opinion.

[160] Dr. Pollanen finds no satisfactory medical evidence to clearly indicate which of the two assaults caused Fudge to die. He is open to the possibility that a sequence of blows could not be excluded as a contributing factor. A straightforward logical inference of cause and effect tends to support Kenny’s assault as the cause of death, but that is not premised on anything fundamental about ACS. Dr. Pollanen could not conclusively exclude Manasseri’s blows as a contributing factor.

Dr. Matthew Bowes

[161] Dr. Matthew Bowes, the Chief Medical Examiner for the province of Nova Scotia, prepared a report at the request of appellate counsel for the Crown. He concluded that the cause of death was blunt head trauma but that the mechanism of death cannot be identified. He accepts that ACS exists, but points out that the most important questions about it have not yet been elucidated. He testified that, to the extent ACS requires cardiorespiratory arrest, it can be excluded here. Autoresuscitation after cardiorespiratory arrest is a virtual impossibility. In his opinion, the observations by paramedics of Brian Fudge’s pulse, breathing and blood pressure when they arrived, provide no evidence of his being in cardiorespiratory arrest and excludes ACS as the mechanism of death.

Summary

[162] The evidence at trial – the testimony of Dr. Ayroud, Dr. Jansen and Dr. Lesiuk – characterized the mechanism of death as DAI. They rejected ACS. Their opinions implicated Manasseri and exculpated Kenny. The verdict of the jury reflected those opinions.

[163] The fresh evidence witnesses – Dr. Ramsay, Dr. Milroy, Dr. Pollanen and Dr. Bowes – see the mechanism of death somewhat differently. Pollanen, Ramsay and Milroy support ACS as the mechanism of death. Bowes rejects it. Pollanen expresses no opinion about which assault caused the condition. Ramsay assigns responsibility to the Kenny assault, but cannot exclude some contribution by Manasseri. Dr. Milroy considers the Kenny assault as the cause without any contribution by Manasseri. Dr. Bowes who rejects ACS and considers DAI a possible explanation, offers no opinion about which assault caused or contributed to the mechanism of death.

The Arguments on Appeal

[164] Manasseri says that the fresh evidence directly contradicts the evidence about mechanism of death adduced at trial. It establishes the strong likelihood that Brian Fudge’s death was the result of ACS. It is in the interests of justice that this evidence be received on appeal. Its reception warrants at least a new trial, if not an acquittal, because it is very likely that Manasseri is innocent of any crime of unlawful homicide in the death of Brian Fudge.

[165] Manasseri acknowledges the burden of establishing the conditions precedent to the reception of the fresh evidence he proposes for admission. He says he has met these requirements under R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 and Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321.

[166] Manasseri accepts that evidence proposed for admission on appeal that could have been tendered at trial – the opinions of Dr. Ramsay and Dr. Pollanen – requires special scrutiny, especially where the explanation advanced, at least so far as Dr. Pollanen is concerned, is a tactical decision by trial counsel. But fresh evidence that establishes the possible innocence of an appellant or demonstrates that the verdict reached at trial was unreasonable meets this standard. The evidence of Ramsay and Milroy is a powerful assertion of Manasseri’s factual innocence leaving little prospect that a jury on a hypothetical new trial would now conclude that Manasseri caused or contributed to Brian Fudge’s death.

[167] Manasseri says that the proposed evidence is relevant, material and admissible as expert evidence. It bears upon a decisive issue, indeed the central issue at trial – what and thus who caused Brian Fudge’s death. The proposed evidence meets both the threshold requirements for the admissibility of expert opinion evidence and the gate-keeping analysis set out in in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.

[168] Manasseri contends that the evidence proposed for admission consists of opinions expressed by renowned experts in their field. Their opinions are reasonably capable of belief and, if believed, when taken with the other evidence adduced at trial, could reasonably be expected to have affected the result on the central issue at trial.

[169] Manasseri resists any suggestion that the evidence lacks sufficient cogency to warrant admission. The presence of vital signs after the Kenny assault does not negate ACS as the mechanism of death according to the bulk of the evidence. There is no credible explanation, apart from ACS, for the hypoxic ischemic injury seen on post-mortem examination.

[170] According to Manasseri, the verdict in this case does not rest on eyewitness evidence alone. It simply cannot be said that those accounts presented such a cogent picture of criminal responsibility of Manasseri that the expert opinion evidence about cause of death was beside the point on this issue. ACS was not in play at trial. Its application was rejected by each of the experts who testified there. The only mechanism of death advanced there was DAI. The choice left at trial was whether a more protracted assault involving greater force or a single punch causing immediate collapse and unconsciousness (or both) caused Brian Fudge`s death. The pathological evidence unanimously favoured the former.

[171] Manasseri argues that neither the rarity of ACS nor the inability of its proponents, Ramsay and Pollanen, to exclude Manasseri`s assault as a contributing factor (Milroy cannot exclude it either but sees no evidence that it did contribute) means that the proposed evidence is not sufficiently cogent to warrant admission. The cogency requirement is not so exacting that the proposed evidence must eliminate even the possibility of guilt to gain entry.

[172] Turning to due diligence, Manasseri emphasizes that due diligence is not a condition precedent to the admission of fresh evidence on appeal. Where the proposed evidence satisfies the cogency requirements, an appellate court must consider why it was not called at trial, especially if the evidence was available there. Trial counsel was unaware of Dr. Ramsay, although mention of him did appear in the file of previous counsel as a prospective defence witness. Counsel did not see this reference because it was contained in the certiorari materials rather than the trial brief. Trial counsel did speak to a couple of prominent American pathologists but was not able to retain them and reasonably settled on Dr. Pollanen as a prospective expert witness.

[173] Manasseri submits that if the fresh evidence was not led at trial due to the ineffective assistance of trial counsel, the strictures of the due diligence test and the need for elevated cogency do not apply. The failure of trial counsel to be familiar with the whole file, debrief former counsel or re-set upon hearing that another expert has reviewed the case (as trial counsel heard during the examination of the experts at trial), could be characterized as ineffective assistance, but it is unnecessary to do so. Dr. Pollanen’s report was but a dim preview of what he would later say and he should have been more forthcoming with trial counsel. Due diligence considerations do not warrant exclusion of the proposed evidence.

[174] The respondent mounts a concerted attack on each condition precedent to the reception of fresh evidence on appeal. The proposed evidence, while relevant, is not admissible as expert opinion evidence. It lacks “cogency”. Furthermore, when the due diligence factor is considered, the proposed evidence falls short. It is not “fresh”, rather was available and could have been adduced at trial with even the most modest of diligence.

[175] First, admissibility. To be admissible as expert opinion evidence on appeal, the evidence must meet the threshold Mohan test. The evidence must be logically and legally relevant. It must be firmly grounded on demonstrable evidence and the evolving scientific literature.

[176] At the gatekeeper stage, the necessity for and reliability of the evidence must be assessed. The benefits achieved by its introduction must exceed any potential harm occasioned by its reception. A court must scrutinize the subject-matter of the evidence, the methodology used, the expertise and the extent to which the expert is impartial and objective. Helpful factors in assessing reliability include whether the theory or technique can be and has been tested and whether it has been subjected to peer review and publication. A court should consider the known or potential rate of error or the existence of standards and take into account whether the theory or technique has been generally accepted.

[177] The respondent says that while most pathologists recognize cases that fit the description of ACS, the theory or mechanism by which it operates has not been established. As a result, ACS does not provide a reliable basis upon which to distinguish the roles of the two assaults in causing the death of Brian Fudge.

[178] Second, cogency.

[179] As noted above, the respondent agrees that the proposed evidence is relevant. However, the versions of ACS propounded by Dr. Ramsay and Dr. Milroy are neither credible nor capable of affecting the result. The version advanced by Dr. Pollanen and Dr. Bowes is credible, but could not be expected to have affected the result at trial. Support for ACS exists only at the anecdotal, not the mechanistic level. The parameters of the syndrome are not fully codified. Two versions exist. One requires immediate collapse, the other not. One includes mechanism of death, the other not. One requires autoresuscitation, the other not. And neither excludes Manasseri as a cause of Brian Fudge’s death.

[180] In addition, the respondent continues, the proposed fresh evidence was before the jury at trial through cross-examination of the Crown’s experts on the basis of Dr. Pollanen’s report. The jury were made aware and invited to consider it at trial. They accepted another opinion in recording their conclusion as they were entitled to do.

[181] The respondent describes the decision of trial counsel not to call Dr. Pollanen as a tactical decision well within the bounds of competent professional judgment. Counsel used Dr. Pollanen’s report to great advantage in challenging the Crown’s experts. That other counsel would have called Dr. Pollanen as a defence witness does not render trial counsel’s contrary decision incompetent. Besides, Dr. Pollanen would have characterized the differences between his opinion and those of the Crown witnesses, as reasonable differences of professional opinion, leaving Manasseri equally vulnerable to conviction on either basis. Dr. Pollanen would have agreed with any reasonable hypotheticals, and the risk of calling him could potentially outweigh the benefits.

[182] The respondent says that the proposed evidence should be held to a higher standard of cogency because the decision not to tender it at trial was a tactical decision. The hypothetical re-trial is not the proper vehicle to assess the cogency of the fresh evidence. What must be determined is whether the proposed evidence raises a concern over the validity of the trial verdict sufficient to justify a new trial. The proposed evidence is not sufficiently compelling to give strong reason to doubt the factual accuracy of the trial verdict. It should be rejected.

The Governing Principles

[183] Several principles inform our decision in connection with this ground of appeal. Some have to do with proof of the causation element in the prosecution of crimes of unlawful homicide, others the role of expert evidence in proof of causation. The remainder concern the basis upon which we may admit fresh evidence on an appeal from conviction.

Causation in Prosecutions of Unlawful Homicide

[184] Causation is an essential element in the crimes of unlawful homicide. It posits a link between the conduct of an accused, whether an act or omission, and the death of the victim. This requirement appears in the definition of homicide in s. 222(1), of culpable homicide in s. 222(5) and of murder in s. 229(a).

[185] To determine whether a person can be held responsible for causing a particular result, in a prosecution of unlawful homicide the death of another person, we must decide whether that person caused death both in fact and in law: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

[186] Factual causation involves an inquiry about how the victim came to die, in a medical, mechanical or physical sense, and with the contribution of a person charged to that result: Nette, at para. 44. This is a “but for” test or inquiry and is inclusive in scope: R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 15. Expert opinion evidence is admissible in proof of factual causation.

[187] Legal causation is a narrowing concept which filters a wider range of factual causes into a residuum of those sufficiently connected to the harm caused – the death of the deceased – to warrant the assignment of criminal responsibility for having caused that harm: Nette, at paras. 45 and 83; Maybin, at para. 16.

[188] The causation inquiry is case-specific and fact-driven: Maybin, at para. 17.

[189] Factual causation is not limited to the direct and immediate cause or even to the most significant cause. Indeed, there may be many contributing causes of death: Maybin, at paras. 14 and 20.

[190] In a jury trial, the jury does not and is not instructed to engage in a two-part analysis of whether both factual and legal causation have been established beyond a reasonable doubt. In a single instruction, the trial judge seeks to convey the requisite degree of factual and legal causation by use of the compendious descriptive “significant contributing cause”: Nette, at paras. 46 and 71. This standard remains the same even in cases where it is alleged that some intervening act has fractured the chain of causation: Maybin, at para. 28.

[191] In the Criminal Code, the causation requirement does not contain a reference to “mechanism of death”, a term often used by pathologists and encompassed in the factual causation requirement.

The Role of Expert Evidence in Proof of Causation

[192] The principal influence of expert medical opinion evidence in proving cause of death in prosecutions for unlawful homicide relates to factual causation. Recall that factual causation involves an inquiry about how the deceased came to die in a medical, mechanical or physical sense and with an accused’s contribution: Nette, at para. 44.

[193] A jury assigned the task of deciding an issue of causation is not limited to the opinions of medical experts any more than they are limited to expert opinion evidence in deciding the issue of criminal responsibility when mental disorder is advanced. A jury is required to use its common sense in resolving the causation issue and entitled to consider all the evidence in doing so: R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at pp. 515-518. Expert medical opinion evidence is admissible to establish factual cause. But the work of the expert is purely diagnostic. We do not require medical witnesses, however eminent, to distinguish between causes and conditions, or to rank causes as to their relative significance of contribution to death: Smithers, at p. 518.

[194] It is important not to confuse legal causation with medical certainty: R. v. Fiorino, 2008 ONCA 568, 233 C.C.C. (3d) 293, at para. 46. Nor should medical diagnosis be confused with legal causation: Fiorino, at para. 49.

[195] The issue of causation is no different than any other issue involving an essential element of an offence assigned to a jury for decision. The jury’s obligation is to decide the issue on the basis of all the evidence that bears upon that question. Sometimes, as on issues of causation in the prosecution of unlawful homicide, this evidence includes expert medical opinion. But a jury often has other evidence upon the basis of which to decide the issue: R. v. Pocock, 2015 ONCA 212, 19 C.R. (7th) 60, at para. 15.

[196] The issue of causation is for the jury to decide, not experts. In reaching their conclusion, a jury can apply their common sense. Indeed, expert medical opinion evidence is not a sine qua non of a conviction for murder. Consider the case in which the body of the deceased cannot be located. No body. No cause of death. Yet we permit convictions of our gravest crime in such circumstances.

The Admissibility of Fresh Evidence on Appeal

[197] Appellate courts are statutory creatures. They derive their authority, whether substantive or procedural, from enabling legislation. Such as the authority to admit on appeal evidence that was not given at the trial, the verdict of which is under review.

The Statutory Authority

[198] Section 683 of the Criminal Code permits an appellate court to obtain, receive and rely upon material that forms no part of the trial record. In particular, s. 683(1)(d) authorizes an appellate court to receive the evidence, if tendered, of any witness.

[199] The standard to be applied in determining whether to admit further evidence on appeal is expressed in the introductory words of s. 683(1) – “in the interests of justice”. The phrase is ubiquitous, a frequent flier in several different contexts in the Criminal Code. Here, typically, Parliament has eschewed inclusion of relevant factors, whether illustrative or exclusive, in favour of an undifferentiated or amorphous discretion. But the jurisprudence has furnished some interpretive assistance.

[200] The “interests of justice” includes but is not co-extensive with the interests of the accused in having an adjudication of his guilt determined on the basis of all the available evidence. The phrase also takes cognizance of the preservation and promotion of the integrity of the criminal justice process in which the trial provides the parties with an opportunity to present their cases and advance arguments about disposition and the appeal offers the parties the opportunity to challenge the correctness of what happened at trial: Truscott, at para. 101; R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at paras. 106-107, leave to appeal refused, [2010] S.C.C.A. No. 179; R. v. M.(P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411.

[201] An essential aspect of “the interests of justice” is the reliability of the verdict rendered at the conclusion of trial: R. v. Hartman, 2015 ONCA 498, 326 C.C.C. (3d) 263, at para. 18. It follows that fresh evidence may be tendered on appeal to challenge factual findings essential to the verdict rendered at trial: Hartman, at para. 18. As a result, an appellant may tender evidence on appeal to challenge the adequacy of the Crown’s proof of an essential element of the offence(s) of which the appellant has been convicted.

The Criteria/Conditions Precedent

[202] Appellate courts have interpreted the enigmatic “interests of justice” standard to involve the application of four principles to inform the exercise of the court’s discretion to receive fresh evidence. The proposed evidence:

i. should generally not be admitted if, by due diligence, it could have been adduced at trial (not to be applied as strictly in criminal cases as in civil);

ii. must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

iii. must be credible in the sense that it is reasonably capable of belief, and,

iv. it must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. See: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.

[203] The Palmer criteria may be expressed as three questions:

1. Is the evidence admissible under the operative rules of evidence? [admissibility]

2. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? [cogency]

3. What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? [due diligence]

See: Truscott, at para. 92.

[204] The admissibility requirement is straightforward. It requires that the evidence proffered on appeal satisfy the admissibility rules of the law of evidence. The principal admissibility rules – hearsay, opinion and character – are by nature exclusionary. To be admissible, the proposed evidence must not engage the rules, or must fall within a recognized exception.

[205] The cogency requirement asks three questions:

1. Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?

2. Is the evidence credible in that it is reasonably capable of belief?

3. Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

See: Truscott, at para. 99. When the evidence proffered on appeal challenges a factual finding essential to the verdict reached at trial, as for example the causation finding in a prosecution of murder, the admissibility of the evidence will depend on the answers to these inquiries: Hartman, at para. 18.

[206] The final component – due diligence – is not a precondition to admissibility and only enters play when the requirements of admissibility and cogency have been satisfied: Truscott, at para. 93 & 101; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 64. It is a factor to consider in deciding whether the interests of justice, especially the need for finality, warrant admission: M.(P.S.), at p. 410.Each component requires further examination.

The Admissibility Requirement

[207] It would not be in the interests of justice for an appellate court to admit and rely upon material that could not be admitted at any new trial the court ordered, at least where the appellant seeks to impeach critical findings of fact by the introduction of the new evidence:Truscott, at para. 95.

[208] In this case, the admissibility rule at work is the opinion evidence rule. The general effect of the rule is exclusionary, but it makes allowances for inclusionary exceptions, among them, expert opinion evidence: White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 14-15.

[209] To engage the expert opinion exception to the opinion evidence rule, the proposed evidence must meet the four threshold requirements of Mohan:

i. relevance;

ii. necessity;

iii. absence of an exclusionary rule, other than the opinion rule; and,

iv. a properly qualified expert:

See: White Burgess, at para. 19; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 43.

[210] The expert opinion evidence proposed for admission must also satisfy the gatekeeping function, which involves a balancing of the potential risks and benefits of admitting the evidence to determine whether the evidence is sufficiently beneficial to the trial process to justify its admission despite the potential harm that its admission may cause to that process: White Burgess, at para. 24; R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, at para. 76.

[211] A final point about admissibility. Where the expert opinion evidence relates to a novel scientific theory or technique, an additional inquiry or level of scrutiny is necessary: White Burgess, at para. 23; R. v. J.-L.J., 2000 SCC 51, [2000] 2 SCR 600, at para. 33; Mohan, at para. 28.

The Cogency Requirement

[212] Whether the proposed evidence satisfies the cogency requirement depends on the answer to the three cogency questions, set out above at para. 205, as to (i) relevance to a potentially decisive issue; (ii) being reasonably capable of belief; and (iii) being sufficiently probative that it could reasonably be expected to have affected the result.

[213] The cogency inquiry requires a qualitative assessment of the proposed evidence. But not on its own, as if it were some island cast adrift. The evaluation must measure the probative potential of the evidence considered in the entirety of the evidence admitted on appeal and heard at trial: Truscott, at para. 100.

[214] In this case, the evidence the appellant proposes for admission – the opinions of Dr. Ramsay and Dr. Milroy – must be considered having regard to the reports and examinations of Dr. Pollanen and Dr. Bowes, not only to the extent that they are supported, but also to the extent that they are qualified or contradicted. To determine whether the evidence should be admitted and, if admitted, its impact on the validity of the conviction recorded at trial, counsel have treated the opinions and examinations of all four experts as part of a single whole. See: Dooley, at para. 61. I will do the same.

[215] An appellate court must decide whether the proffered evidence raises a concern about the validity of the trial verdict sufficient to justify a new trial. To decide this issue, we examine the proffered evidence in the context of the evidence adduced at trial. We then ask whether the proffered evidence, if believed, could reasonably be expected to have affected the result reached at trial. But fresh evidence that meets this standard of cogency will not necessarily be admitted on appeal. Other factors relevant to the overarching statutory test, “the interests of justice”, require consideration before a final decision can be made: Dooley, at para. 105.

[216] Along the cogency continuum lie at least three discernible markers. At one end, the proffered evidence may satisfy a court of appeal that an appellant is innocent of the crime of which she or he was convicted. Next, the proffered evidence, when considered with the evidence adduced at trial, may satisfy the court of appeal that no reasonable jury could convict the appellant. In those circumstances, the court of appeal will set aside the conviction and order an acquittal. Finally, the proffered evidence may be sufficiently cogent to satisfy the requirements for admission on appeal, that is to say, that it could reasonably have affected the verdict at trial, but not be sufficiently cogent to exclude the reasonable possibility of a conviction. In these circumstance, the court of appeal will set aside the conviction and order a new trial: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 46, leave to appeal refused, [2007] S.C.C.A. No. 258; R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480, at p. 491-492.

[217] Fresh evidence may be sufficiently cogent to warrant admission where it vitiates a basis upon which a critical finding of fact depends or undermines the credibility of a crucial witness or the reliability of that witness’ testimony: R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 11. Evidence proffered on appeal that lacks sufficient cogency to compel the ordering of a new trial, will not be received on appeal: Maciel, at para. 49.

[218] But sometimes the proffered evidence was available at trial but not adduced because of tactical reasons thought justifiable by trial counsel. What then? In these circumstances, an additional degree of cogency is necessary before the proffered evidence can be received. To hold otherwise would render due diligence considerations illusory: Maciel, at para. 50; Dooley, at para. 106-109. The proffered evidence must give us strong reason to doubt the factual accuracy of the verdict rendered at trial: Maciel, at para. 51; Dooley, at para. 108.

The Role of Due Diligence

[219] Although, as we have already seen, the exercise of due diligence is not a condition precedent, an inquiry into due diligence occupies a prominent place in deciding whether to admit fresh evidence on appeal. After all, the “interests of justice” in s. 683(1) extend beyond those of an appellant and encompass the preservation and promotion of the integrity of the criminal justice process: Truscott, at para. 101. The due diligence factor ensures finality and order, values essential to the integrity of our criminal justice process: Hay, at para. 64; M.(P.S.), at p. 411; and, R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 19.

[220] The due diligence inquiry is context-sensitive. It demands consideration of the totality of the circumstances including, but not limited to, the nature of the proceedings. When considering the “interests of justice” we are not entitled to ignore the practical consequences that ensue from our decision according to the manner in which we exercise our discretion. It is one thing to reject “fresh” evidence on appeal, in the name of finality, where what follows from the rejection is that an appellant’s conviction of a regulatory offence is sustained and the fine imposed at trial enforced. It is quite another to reject evidence of the same cogency grounded on the finality principle, where the exclusion means that the appellant remains convicted of murder and subject to a sentence of imprisonment for life: Maciel, at para. 43.

[221] The failure to adduce at trial evidence then available weighs heavily against the admission of that evidence on appeal: R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 83, particularly where the decision was a tactical decision of counsel conducting the case: Dooley, at para. 107; Maciel, at paras. 39-41; Truscott, at para. 101-102.

[222] On the other hand, even where the proposed evidence was available at trial and not led for tactical reasons, some authorities recognize that where the evidence is so compelling as to give strong reason to doubt the factual accuracy of the verdict, it should be received on appeal: Dooley, at para. 108; Maciel, at paras. 50-51; Truscott, at para. 102.

[223] Two further points to finish up with the role of due diligence in fresh evidence cases.

[224] First, mere lack of knowledge on the part of trial counsel, without any indication of an inquiry into the possibility of obtaining and presenting what is later tendered as fresh evidence on appeal, is a factor that favours exclusion. That said, in criminal cases involving serious charges, like murder, lack of due diligence alone will not mandate exclusion: Hay, at para. 67.

[225] A final point. The due diligence criterion should not trump the other Palmer criteria, especially in circumstances in which trial counsel’s strategy in not adducing the evidence was reasonable in the evidentiary milieu of the trial: J.A.A., at para. 8.

The Principles Applied

[226] As I will explain, I would admit the evidence of Dr. Ramsay and Dr. Milroy as fresh evidence, allow the appeal, set aside Manasseri’s conviction of second degree murder and order a new trial on that charge. I reach this conclusion as a result of an analysis that proceeds through a series of steps.

[227] To begin, it is helpful to recall the issue to which the proposed fresh evidence is directed and its significance to the verdict rendered at trial.

[228] The proposed evidence challenges a factual finding made by the jury which was essential to their verdict that Manasseri was guilty of second degree murder. Of necessity, the jury found that Manasseri’s assault of Brian Fudge was a significant contributing cause of Brian Fudge’s death. The proposed fresh evidence is offered to undermine that finding. It follows that its admissibility on appeal is tested against three criteria, which may be summarized as:

• admissibility

• cogency

• due diligence

[229] First of all, the admissibility requirement.

[230] To be admissible, this evidence must satisfy the threshold requirements of Mohan and survive the gatekeeping analysis required by White Burgess.

[231] The proposed fresh evidence satisfies the threshold requirements of Mohan.

[232] The evidence is relevant in that it shows or tends to show what caused Brian Fudge’s death in a medical, mechanical sort of way. Thus it tends to establish the factual component of the causation requirement, an essential element in all prosecutions for unlawful homicide.

[233] The proposed evidence has to do with subject-matter that is beyond the experience of jurors. It permits them to understand a technical subject and to reach a conclusion on an issue that, without the evidence, they would be unlikely to comprehend. The evidence is given by acknowledged experts in forensic pathology and neuropathology and its admission would not offend any other exclusionary rule of the law of evidence.

[234] I would not give effect to the respondent’s submission that the evidence here is novel scientific evidence that requires an enhanced degree of reliability to permit its reception.

[235] The proposed evidence does not involve novel or contested science or science used for a novel purpose. That ACS is supported only by anecdotal, rather than mechanistic evidence does not take it out of mainstream expert opinion evidence. Each expert recognizes ACS as a viable explanation where death occurs in an intoxicated individual who has suffered head trauma and where no other explanation emerges from the post-mortem examination and study of histological samples. Infrequency of occurrence is not the equivalent of novel science.

[236] It is of interest to note that the respondent does not seem to take issue with the proposed evidence so far as it tends to negate DAI as advanced at trial, as a mechanism of death, yet claims it should be subjected to greater scrutiny when it is put forward as the mechanism of death.

[237] Application of the gatekeeping analysis reveals a predominance of benefits over detriments. The evidence has significant probative potential on the issue of causation since the factual component of causation has to do with the medical or mechanical way in which a person dies. Causation is an essential element in all crimes of unlawful homicide. And causation is linked through conduct to criminal responsibility. A person whose unlawful conduct is a significant contributing cause of the death of another has unlawfully caused that person’s death and has committed culpable homicide.

[238] This is a case where a jury can apply their common sense to the issue of causation, aided in that task by expert opinion evidence on the possible mechanistic elements establishing the factual causation of Brian Fudge’s death, in order to resolve the issue of legal causation, which does not require medical certainty.

Cogency

[239] Secondly, cogency.

[240] The assessment of cogency requires a hypothetical admixture of the proposed evidence and the evidence given at trial, coupled with an objective verdict-based analysis.

[241] At trial, the expert opinion evidence about mechanism of death was given by an anatomical pathologist, a neuropathologist and a neurosurgeon called by the Crown. The only mechanism they advanced was DAI. This implicated Manasseri and tended to point away from Kenny. As a mechanism leading to Brian Fudge’s death, ACS was not in play at trial. The witnesses for the Crown denied it any place in causing death. It was not left to the jury on the issue of causation in relation to Manasseri, or for that matter, Kenny.

[242] The cogency requirement embraces elements of relevance, credibility and probative value. The proposed evidence must bear on a decisive or potentially decisive issue, must be reasonably capable of belief and, when considered with the evidence adduced at trial, must reasonably be capable of affecting the verdict at trial.

[243] The proposed evidence is relevant. It relates to factual causation and, by extension, to criminal responsibility.

[244] The proposed evidence is credible. That is to say, reasonably capable of belief. The sources of the testimony are renowned experts in forensic pathology and neuropathology. The differences in their versions of ACS are scarcely remarkable and do not render their evidence incredible or insufficiently credible that it do not satisfy the cogency requirement. Although there are potential flaws in either theory, the frailties do not mandate that the issue cannot go to the jury, because the state of the theories are not such that they are incapable of being evaluated by a jury.

[245] An assessment of the impact of the evidence on the verdict rendered at trial, had it made its way into evidence there, requires a contextual analysis. The proposed evidence would potentially exclude DAI, the single process advanced at trial, as a mechanism of death. That DAI was the mechanism that resulted in Brian Fudge’s death was an important link in the chain of proof relied upon by the Crown to prove Manasseri’s guilt. To be certain, it was not the only evidence. For, as we have seen, the jury was required to consider all the evidence including the relative severity and immediate consequences of Manasseri’s assault. In addition, ACS would have provided an alternative mechanism of death, likewise a link in the chain of proof, hence criminal responsibility, but one that pointed more to a different author – George Kenny – than did DAI.

[246] The respondent makes much of the absence of conclusiveness in the fresh evidence. Depending on the expert, the proposed fresh evidence either cannot exclude Manasseri or can say nothing about the relative contribution of each assailant. As it seems to me, these differences in the opinions of the experts speak to the nature of the remedy that should follow from reception, rather than submerging the proposed evidence below the water line for admission on appeal.

Due Diligence

[247] We generally hold fresh evidence to a more stringent standard of cogency where it was available, but not adduced at trial because of a tactical decision by trial counsel.

[248] The rule is general, but not unyielding. Due diligence is not a trump card that denies entry to all evidence tendered for the first time on appeal that satisfies the admissibility and cogency requirements for admission. It is all the more so where the evidence impeaches a critical finding of fact relating to an essential element of an offence which would result in continued confinement under a sentence of imprisonment for life unless the evidence were admitted.

[249] The tactical decision inveighed against Manasseri here is the failure of trial counsel to call Dr. Pollanen as a defence witness to advance ACS as a mechanism of death. But consider the circumstances. The waning moments of a murder trial. A witness whose opinion about ACS was markedly less firm than it became nearly a decade later, despite his protestations to the contrary, and expressed in a report that was more opaque than transparent. A witness who told trial counsel he would agree with all reasonable hypotheticals. And a witness who suggested to counsel that he should hire a pathologist outside the forensic pathology service because he (Pollanen) could not fulfill that role.

[250] That other counsel in equivalent circumstances would or may have called Dr. Pollanen is beside the point. The decision trial counsel made was a reasonable tactical choice. It did not amount to ineffective legal assistance and does not warrant exclusion of the proposed evidence.

[251] Nor did the failure of trial counsel to advert to the possibility of Dr. Ramsay as a potential defence witness, from correspondence in the file of prior counsel on the discrete pre-trial issue of certiorari, fall far enough below the scope of competent representation, given trial counsel’s attempts to contact other prominent neuropathologists and the ability to call Dr. Pollanen to the stand, that it constituted ineffective assistance of counsel or undermined the due diligence requirement such as to render the proposed fresh evidence inadmissible on appeal.

[252] I would admit the fresh evidence, allow Manasseri’s appeal, set aside his conviction and order a new trial on the charge of second degree murder.

KENNY’S APPEAL FROM CONVICTION

[253] In his factum, in addition to the joinder issue, George Kenny advanced two discrete grounds of appeal against conviction. The first alleged a constitutional infringement and sought a stay of proceedings. The second challenged an instruction given by the trial judge about the manner in which jurors should approach the evidence of a particular Vetrovec witness.

[254] At the outset of oral argument, Mr. Krongold abandoned the second Vetrovec ground of appeal. Apart from remarking on the wisdom of his decision, I shall say nothing more about that ground.

Ground #1: Trial within a Reasonable Time

[255] Mr. Krongold reactivates the complaint first advanced on Kenny’s behalf in two unsuccessful pre-trial motions before different judges of the Superior Court of Justice: George Kenny was not tried within a reasonable time as s. 11(b) of the Charter requires.

[256] Since oral argument on appeal, the s. 11(b) landscape has changed markedly. As a result, we invited and received further submissions from counsel on this judicially-created change in the law that has retrospective effect. An essential beginning for the discussion that follows is a journey down the long and winding road over which this prosecution has lurched over the last decade since Brian Fudge died.

The Procedural History

(1) The Early Charges

[257] Brian Fudge died on January 2, 2005. Dr. Ayroud performed the post-mortem on January 4, 2005 and apprised investigators of her findings two days later.

[258] George Kenny was arrested on January 6, 2005. He was charged with assault causing bodily harm in connection with his assault on Daniel Narraway and simple assault in relation to his assault on Brian Fudge on January 7, 2005. He was granted judicial interim release on January 12, 2005 on consent.

[259] At a court appearance on July 5, 2005, the Crown elected to proceed summarily on both counts. An agent appearing for counsel for Kenny, who had been privately retained, sought an early trial date, inquiring about the availability of dates in December, 2005 for what was anticipated to be a five day trial.

[260] George Kenny’s summary conviction trial was set for five days in late-April, 2006, about fifteen months after he was charged.

(2) The Offence Upgrade

[261] About three weeks before Kenny’s summary conviction trial was to begin, the Crown advised Kenny’s counsel that Kenny would be charged with manslaughter arising out of Brian Fudge’s death and would be joined in a new information as a co-accused with Manasseri, who had been charged separately with second degree murder on January 7, 2005.

[262] The basis upon which the charge against Kenny was upgraded from simple assault to manslaughter was a report from a second pathologist, Dr. Dexter, who had reviewed the work of Dr. Ayroud for the Regional Coroner. The report, dated March 29, 2006, was said to have changed the state of the evidence concerning the causal link between Kenny’s assault and Brian Fudge’s death.

[263] In her post-mortem report, Dr. Ayroud had not mentioned any indication of a second incident on the body of the deceased, simply itemizing all of her post-mortem examination findings. In her discussion with investigators on January 6, 2005, in response to questions the Crown had asked them to pose, she was asked if it was possible that the second incident was a contributing factor. Dr. Ayroud expressed the view that there was no sign that there was a second incident and that it did not contribute to the death. A second incident could possibly have accelerated Brian Fudge’s death, but he would have died anyway (presumably as a result of the first assault).

[264] The reviewing pathologist, Dr. Dexter, explicitly referred to the two assaults on the victim in his report. Dr. Dexter observed a shear injury in the brain sections, consistent with multiple blows that occurred in the bar. He found no physical evidence to specifically allocate injury to a second assault and none to support a high impact ground/head contact. A second blow, which caused unconsciousness according to several witnesses, “may further have contributed to brain damage and to the already damaged brain”.

[265] Dr. Dexter concluded:

However, it is my opinion that the major component of brain damage occurred in the first assault. In the absence of the second assault, enough brain damage may have occurred to result in death. The second assault contributed a lesser component of damage. While it resulted directly in loss of consciousness as a witnessed event, the blow may have resulted in more severe damage because the brain was already injured, than would have a similar blow to an uninjured brain. [Emphasis added.]

He recommended that the cause of death be described as “extensive closed head injury from blunt force injury”.

[266] On April 12, 2006, about fifteen months after Brian Fudge’s death, a new information was laid charging Kenny with manslaughter and assault causing bodily harm, and Manasseri with second degree murder. Manasseri had not yet set a date for a preliminary inquiry and Kenny had not yet received a copy of Dr. Ayroud’s post-mortem report. He received the post-mortem report about nine months later, in January, 2007.

[267] Counsel for Kenny repeated his request to move the case along, reiterated his wish to be tried alone in the Ontario Court of Justice, and complained about being tethered to Manasseri whose trial on second degree murder could only be held in the Superior Court of Justice.

(3) The Preliminary Inquiry

[268] Within a month of joinder, the parties agreed that they would require 15 days for the preliminary inquiry. The court offered a week the following month to commence the inquiry, but the Crown nixed this proposal.

[269] The court then offered dates almost every week from September, 2006 until April 2, 2007. Counsel for Manasseri insisted that he was not available for 11 months, until April 10, 2007, 27 months after the initial arrests. Kenny’s counsel was available throughout the period offered by the court, but declined by Manasseri’s counsel.

[270] The parties’ expectations about the number of witnesses to be called at the preliminary inquiry varied significantly. Kenny anticipated 15 witnesses, including three medical experts. The Crown said 32. Manasseri’s counsel wanted 39 witnesses subpoenaed, but said he was content to discover 10 of them outside the preliminary inquiry. At a focus hearing before a judge of the Ontario Court of Justice, the Crown acknowledged that there was “no reasonable chance” that the preliminary inquiry would be completed within the original estimate of 15 days.

[271] The preliminary inquiry began on April 10, 2007. It ended nearly a year later, on March 27, 2008. Twenty-three witnesses gave evidence over forty-four court days. Neither appellant called any evidence.

[272] On December 9, 2008, nearly eight months after the preliminary inquiry had concluded, the presiding judge discharged Kenny on all counts. Manasseri was discharged on second degree murder, but committed for trial on assault causing bodily harm. Almost four years had elapsed since Brian Fudge’s death and the appellants’ arrests.

(4) The Applications for Certiorari and the Appeal Proceedings

[273] The Crown applied for certiorari in relation to both discharges, seeking orders in the nature of mandamus compelling the committal of Kenny for trial on manslaughter and assault causing bodily harm, and Manasseri for trial on second degree murder. The applications were scheduled for hearing in early April, 2009, about four months after the committal decision.

[274] In early March, Manasseri’s counsel sought an adjournment of the hearing of the certiorari applications. The Crown did not oppose the request. Kenny expressed a desire to keep the April dates. At that time, counsel expected the hearing would take place in June or July but it was ultimately scheduled for September, 2009, nine months after the committal decision. The Crown mentioned the prospect of a direct indictment, but later advised without elaboration that the Attorney General’s consent was not forthcoming.

[275] On September 25, 2009, a judge of the Superior Court of Justice upheld Kenny’s discharge, but quashed Manasseri’s discharge and ordered that he be tried for second degree murder. Both the Crown and Manasseri appealed.

[276] The appeals were heard on May 4, 2010 and decided on June 2, 2010: see 2010 ONCA 396. Kenny was committed for trial on manslaughter and assault causing bodily harm on August 10, 2010, five years and eight months after his original arrest.

(5) The First Superior Court Trial Date

[277] At the first judicial pre-trial in early September, Manasseri’s counsel announced that he would not be acting for Manasseri at trial. He had contacted other senior Ottawa counsel, but Manasseri had not yet spoken to any of them. Kenny and the Crown were prepared to start the trial on January 4, 2011 with pre-trial motions prior to the proposed trial date. However, an April 4, 2011 trial date was set, in recognition of the fact that the January trial dates were unrealistic given the absence of counsel for Manasseri, with pre-trial applications for a stay (for breach of s.11(b)) and severance scheduled for December, 2010 and January, 2011, respectively. Manasseri’s new counsel, a senior member of the Ottawa Bar, came on record in December, 2010 and received disclosure the following month.

(6) The First s. 11(b) Application

[278] Kenny’s first s. 11(b) application was heard in December, 2010, almost six years after he was first charged. It was based on an anticipated trial conclusion of June, 2011. The application judge dismissed the motion on January 21, 2010. The judge excluded the certiorari and appeal periods from his calculation, Kenny’s counsel having conceded that this time was neutral. He placed particular emphasis on the unforeseeable change in the medical opinion about cause of death and characterized the delay in completing the preliminary inquiry as attributable to the evolving nature of the evidence and the failure of all counsel to correctly estimate the time required to complete the inquiry. The delay in the Superior Court of Justice was due largely to Manasseri’s counsel. Most delay was found to be neutral. There was minimal Crown and institutional delay[^3] which did not exceed the Morin guidelines.

(7) The Severance Motion and New Trial Date

[279] Kenny’s severance motion was scheduled for January 27, 2011. On January 20, 2011, Manasseri’s new counsel sought an adjournment of the motion because of his recent retainer and acquisition of disclosure. Kenny’s counsel opposed the adjournment request, but the adjournment was granted. The motion was re-scheduled to be heard March 9-10, 2011, in advance of the trial on April 4, 2011.

[280] On March 7, 2011 Manasseri’s lawyer wrote to the Crown confirming Manasseri’s instructions that he would plead guilty to manslaughter. The next day, Manasseri resiled from the proposed plea and his counsel filed a motion to be removed from the record. On March 9, 2011, counsel’s application was granted. The trial date remained – April 4, 2011 – but the severance motion was rescheduled for March 21, 2011.

[281] On March 24, 2011 yet another lawyer appeared for Manasseri and sought a further adjournment of the severance application (scheduled for the next day) and trial date (scheduled for April 4, 2011). Both Kenny and the Crown opposed. Kenny’s counsel proposed that the solution to the issue was simple: the Crown should sever his client’s trial from that of Manasseri. The Crown did not agree with that proposal. The presiding judge allowed the adjournment application in relation to both the severance application and the trial.

[282] After the hearing, counsel obtained new trial dates. The Superior Court of Justice offered September 6, 2011 as a trial date, but Manasseri’s counsel said he was not available until January 2012. Kenny’s counsel was available during the entire fall except for October when he was committed to another homicide trial in a different jurisdiction. The new trial date was set for January 16, 2012, for an eight-week trial expected to end March 9, 2012, over seven years after the appellants’ arrests.

[283] In June, 2011, a judge dismissed Kenny’s severance application.

(8) The Second s. 11(b) Application

[284] Kenny brought a second s. 11(b) application in November, 2011. The judge who heard it felt bound by the factual conclusions of the judge who had heard the first application about a year earlier. Looked at by piece-by-piece, the delay was “all neutral” but the totality was a concern. The judge reserved his final decision to see whether the trial proceeded as then scheduled in January, 2012.

(9) The Trial and Sentencing

[285] The joint trial began on January 16, 2012 and ended with the verdict of the jury on February 29, 2012. Kenny’s sentence hearing occurred on June 7, 2012. He was sentenced about three weeks later, almost 7 ½ years after his arrest.

The Arguments on Appeal

[286] In their supplementary written submissions filed at our request after Jordan, the parties share common ground that the delay exceeded the presumptive ceiling (30 months) and the critical issue that requires decision is whether the Crown has met the burden of establishing a transitional exceptional circumstance to avoid entry of a stay of proceedings.

[287] The appellant calculates the period of delay, deducting the time taken in the certiorari and appeal proceedings, as 68 months, more than twice the presumptive ceiling for trials conducted in the superior court.

[288] Kenny says that the burden settles on the Crown to establish exceptional circumstances that justify the delay. These circumstances must lie outside the Crown’s control. And the Crown must establish that it took reasonable steps to prevent foreseeable delay before that delay occurred. Here, at each stage of these protracted proceedings, the delays were largely foreseeable, yet the Crown took no steps, as for example through severance or otherwise, to prevent the delay.

[289] Kenny acknowledges that the complexity of proceedings, including the presence of one or more co-accused, can constitute exceptional circumstances. But in this case, the Crown cannot satisfy the threshold because, once having initiated what could reasonably be expected to be a complex prosecution, the Crown failed to develop and follow a concrete plan to minimize the delay caused by the complexity it created.

[290] Further, Kenny continues, severance, a request repeatedly made by trial counsel, is no longer a remedy of last resort where joinder causes unacceptable delay by preventing the case for the Crown from moving forward and a co-accused from receiving the expeditious trial he seeks.

[291] Kenny submits that delays occasioned by the exercise of prosecutorial discretion, here to proceed in the Superior Court of Justice jointly against Manasseri and Kenny, must accommodate his (Kenny’s) asserted s. 11(b) right. In this case, joinder resulted in Kenny being held hostage by his co-accused, Manasseri. At every step along the way. Joinder deprived Kenny of his choice of trial forum, as would have not been the case had he been charged separately. Joinder occurred 15 months after arrest. The preliminary inquiry was delayed 11 months because of the unavailability of Manasseri’s counsel, took about a year to complete and was not decided until almost four years after Kenny’s arrest. Trial dates were vacated after certiorari proceedings had been completed because Manasseri repeatedly changed counsel having resiled from a guilty plea that would have advanced Kenny’s trial.

[292] In the end, Kenny submits, the Crown cannot and has not made out a case for the application of any transitional exceptional circumstance. The Crown’s approach at trial under the then existing regime reflects its indulgence in the culture of delay and complacency criticized in Jordan. A stay is warranted.

[293] The Crown characterizes the core issue as whether the Crown was compelled, as a constitutional imperative, to prosecute Kenny separately. The unusual trajectory of the prosecution and the overwhelming public interest in a joint trial mandate a negative response and rejection of the request for a stay.

[294] The Crown says that the complexity of the issues that arose in this prosecution rendered it anything but “a typical murder case”. The constant evolution of the pathological evidence was not something that the Crown could reasonably foresee, but it responded by taking reasonable steps to mitigate any resulting delays.

[295] Dr. Dexter’s report was unforeseeable. Although it affirmed the essential features of Dr. Ayroud’s post-mortem examination, Dr. Dexter’s report, for the first time, implicated Kenny in Fudge’s death, potentially exculpating Manasseri. In these circumstances, criminal responsibility could only be resolved in a joint trial of both persons whose conduct preceded Fudge’s demise.

[296] A paradigmatic unforeseeable event occurred when Dr. Pollanen’s report arrived on the fourteenth day of the preliminary inquiry. Dr. Pollanen disagreed with both Dr. Ayroud and Dr. Dexter. He was unable to include or exclude either Manasseri or Kenny as having caused Fudge’s death.

[297] In the result, the Crown says, the cumulative effect of the complexities in the pathological evidence, the legal issues of causation and criminal responsibility and the necessity for a joint trial to ensure that a single trier of fact could sort out the competing claims amounts to an exceptional circumstance under Jordan.

[298] The Crown contends that the decision in R. v. Vassell, 2016 SCC 26, rendered in advance of Jordan, reflects no departure from the prior jurisprudence. It affirms that joint trials will delay the completion of trial proceedings. This is a fact of life. At some point, the Crown accepts, the joint nature of a trial will not justify a delay beyond the presumptive ceiling. But this case does not reach that point of no return.

[299] The Crown emphasizes the contextual nature of the consideration of reliance on the previous jurisprudence during the transitional phase. In this case, context, which includes the nature of the evidence and issues; the public interest in a joint trial; the proactive efforts of the Crown; and the response of the court meet the standard necessary to justify what is admittedly a lengthy delay.

The Governing Principles

[300] This ground of appeal is governed by the framework created by the majority of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. It requires our consideration, not only of the framework, but also its application to cases such as this that were “in the system” on July 8, 2016, when Jordan was released.

(1) The Jordan Framework[^4]

[301] The central feature of the Jordan framework is a ceiling beyond which delay is presumptively unreasonable. For cases such as this, tried in the superior court, the presumptive ceiling is 30 months: Jordan, at para. 46. The period to which the presumptive ceiling applies begins when an accused is charged and concludes with the actual or anticipated end of the trial: Jordan, at para. 47.

[302] Calculation of the period of delay involves first calculating the total delay, from the charge to the actual or anticipated conclusion of the trial, and then deducting from that total period any delay attributable to the defence, whether waived by it or caused solely or directly by the conduct of the defence: Jordan, at paras. 47; 60 and 66.

[303] Defence waiver of delay can be explicit or implicit, but it must be clear and unequivocal. An accused must have full knowledge not only of his or her rights, but also of the effect waiver will have on those rights: Jordan, at para. 61.

[304] Delay caused solely by the conduct of the defence takes in a variety of conduct that either directly causes the delay or reveals a deliberate and calculated tactic to delay the trial, such as frivolous applications and requests: Jordan, at para. 63. Where the court and Crown are ready to proceed, but the defence is not, the defence will have directly caused the delay. Not so, however, where the court and the Crown are unavailable, even if the defence is not: Jordan, at para. 64.

[305] On the other hand, defence conduct legitimately undertaken to respond to the charge falls outside the scope of defence delay: Jordan, at para. 65.

[306] Where the net delay – total delay minus defence delay – exceeds the presumptive ceiling, the onus of rebuttal settles upon the Crown. To rebut the presumption, Crown counsel must show that the delay is reasonable because of the presence of exceptional circumstances: Jordan, at para. 68. If the Crown cannot rebut the presumption, a stay will follow: Jordan, at para. 47.

[307] Exceptional circumstances are circumstances that lie outside the Crown’s control. These are circumstances that are reasonably unforeseen or reasonably unforeseeable and the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. The circumstances need not also be rare or entirely uncommon: Jordan, at para. 69.

[308] What is required of the Crown is a demonstration that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling. Prompt resort to case management processes. Requests of the defence to streamline evidence or issues at trial. Coordination of pre-trial applications. Invocation of other appropriate procedural mechanisms: Jordan, at para. 70. What counts is effort and initiative, not success.

[309] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases: Jordan, at para. 71.

[310] Discrete events that delay completion of trial proceedings may arise outside the trial context or within it. Any period of delay caused by any discrete events must be subtracted from the net delay to determine whether the delay falls above or below the presumptive ceiling. But the Crown and the justice system must always be prepared to mitigate the delay resulting from discrete exceptional circumstances. Reasonable efforts to prioritize faultering or stumbling proceedings must be undertaken. Thus, any part of the delay that the Crown and system could reasonably have mitigated may not be subtracted: Jordan, at para. 75. See also, Vassell, at para. 10.

[311] The second category of exceptional circumstances consists of cases that are particularly complex. This degree of complexity may arise from the nature of the evidence or the nature of the issues. Proceeding jointly against several co-accused, provided it is in the interests of justice to do so, may also enhance or contribute to the complexity of the case: Jordan, at para. 77. Where the court finds the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue: Jordan, at para. 80.

[312] Several other points should be made about complexity of the case as an exceptional circumstance in the application of the Jordan framework.

[313] First, a typical murder case will not usually be sufficiently complex to amount to an exceptional circumstance. However, where an inordinate amount of time or preparation time is needed because of the nature of the evidence or issues, such that the time taken is justified, the complexity of the case will qualify as an exceptional circumstance: Jordan, at para. 78.

[314] Second, a trial judge should also consider whether the architect of what could reasonably be expected to be a complex prosecution – the Crown – has developed and followed a concrete plan to minimize the delay caused by the complexity that is of the Crown’s doing: R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2; Jordan, at para. 79. The Crown must be cognizant of the fact that any delay resulting from an exercise of their prosecutorial discretion, for example to conduct a joint trial, must respect and conform to an accused’s right to a trial within a reasonable time: Jordan, at para. 79.

[315] Third, the seriousness or gravity of an offence, on its own, cannot be invoked as an exceptional circumstance: Jordan, at para. 81.

[316] Finally, the absence of prejudice to an accused cannot be invoked to justify delays beyond the presumptive ceiling: Jordan, at para. 81.

[317] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, the onus is on the defence to show the delay is unreasonable: Jordan, at para. 48. A stay beneath the ceiling will be rare, and limited to clear cases.

(2) The Transitional Cases

[318] The new framework, including the presumptive ceiling of 30 months for trials taking place in the superior court, applies to cases like this that are currently in the system: Jordan, at para. 95. The new framework is subject to two qualifications.

[319] First, where the period of delay exceeds the presumptive ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to July 8, 2016, the date of the decision in Jordan. To invoke this transitional exceptional circumstance, the Crown must establish that the time the case has taken is justified on the basis of the parties’ reasonable reliance on the previous state of the law: Jordan, at para. 96. Second, where the delay falls below the ceiling, two criteria are applied contextually – defence initiative and whether the time the case has taken markedly exceeds what was reasonably required: Jordan, at para. 99. If the delay was occasioned by institutional delay that was reasonably acceptable under the Morin framework, the institutional delay will be a component of the reasonable time requirements for cases currently in the system: Jordan, at para. 100.

[320] To determine whether a transitional exceptional circumstance will prevail, a court must undertake a contextual assessment of all the circumstances, sensitive to the manner in which the previous framework was applied and the fact that the parties’ behaviour cannot be judged strictly, against the standard of which they had no notice: Jordan, at para. 96. Prejudice and seriousness of the offence, often decisive factors under the former calculus, can inform whether the parties’ reliance on the former law was reasonable. Delay above the presumptive ceiling in a jurisdiction with significant institutional delay problems may also be important: Jordan, at para. 97.

[321] R. v. Williamson, 2016 SCC 28, provides an example of a contextual assessment of the circumstances that inform the decision about whether a transitional exceptional circumstance would justify a delay above the presumptive ceiling. Relevant circumstances included:

i. the complexity of the case;

ii. the period of delay in excess of the Morin guidelines;

iii. the Crown’s response, if any, to any institutional delay;

iv. the defence efforts, if any, to move the case along; and

v. prejudice to the accused.

[322] One point merits mention.

[323] Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused’s right to tried within a reasonable time has been reached: Vassell, at para. 4. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: Vassell, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vassell, at para. 7. Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: Vassell, at para. 10.

The Principles Applied

[324] As I will explain, I would give effect to this ground of appeal. In my view, the application of the Jordan framework to the circumstances of this case requires entry of a stay of proceeding against George Kenny.

(1) The Total Period of Delay

[325] The first step under Jordan is to determine the total length of time that has elapsed between charge and the actual or anticipated end of the trial.

[326] George Kenny was charged on January 7, 2005. The jury returned its verdict on February 29, 2012. The period between these two benchmarks is 86 months.

(2) Defence Delay

[327] The next step is to determine whether any of this delay was waived or solely caused by the defence, then to deduct any such delay from the total elapsed time.

[328] To take first, delay caused solely by the defence.

[329] The record does not reveal any occasion on which the court was available, the Crown and co-accused ready to proceed but Kenny was unavailable or not ready to proceed. Kenny brought two pre-trial motions. The first sought severance: the second, which was brought twice, a stay of proceedings. Neither was frivolous. Neither was lengthy. Any rescheduling of the hearing dates originated with others, not Kenny.

[330] Equally, the record provides no evidentiary support for an assertion that Kenny expressly or impliedly waived any time periods.

[331] From the outset, Kenny’s trial counsel made it clear that Kenny sought an early trial date. As I read the record, he never resiled from that position. He wanted a trial in the Ontario Court of Justice, even after the charge in connection with his assault on Brian Fudge was upgraded from simple assault to manslaughter. He sought to have the Crown proceed against Kenny on a separate information charging him with manslaughter. But the Crown refused to do so. He pressed the Crown for disclosure of the post-mortem report of Dr. Ayroud. He opposed the request of Manasseri’s counsel to delay scheduling the preliminary inquiry for 11 months to accommodate the schedule of Manasseri’s counsel, a request the Crown supported.

[332] When the charges each would face in the superior court were finally settled, Kenny sought severance so that he could be tried separately from Manasseri. He expressly asserted his s. 11(b) rights on two separate occasions prior to trial. Neither expressly nor impliedly did Kenny waive any time period within the 86 month period it took to resolve his guilt.

[333] Something should be said about a time period that counsel seemed to agree should be deducted from the total of 86 months to reach a total delay of 68 months.

[334] George Kenny was discharged on assault causing bodily harm (Daniel Narraway) and manslaughter (Brian Fudge) on December 9, 2008, eight months after the evidence had been completed at the preliminary inquiry. The Crown moved to quash the discharge. The certiorari application was dismissed. The Crown appealed. On June 2, 2010, a panel of this court allowed the Crown’s appeal, quashed the discharge and remitted the matter to the preliminary inquiry judge to determine whether Kenny should be committed on manslaughter, or on some lesser and included offence. Kenny was committed on manslaughter on August 12, 2010.

[335] As a result of the Crown’s application for certiorari and subsequent appeal, Kenny was not a “person charged with an offence” from December 9, 2008 until at least June 2, 2010 and, more likely, until his formal committal on August 12, 2010. In accordance with previous authority, counsel exclude from the total delay the 18 month period during which certiorari and appellate proceedings were on foot. See: R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at pp. 907-908.

[336] In the circumstances of this case, I am content to proceed on the basis of counsels’ agreement, that is to say, with a total delay of 68 months. That said, I do not wish to be taken as having finally determined post-Jordan that, to use a compendious expression, “appellate delay” should be deducted in calculating the total length of time between the charge and the actual or anticipated end of the trial. Counsel did not join issue on the deductibility of appellate delay in their pre-Jordan submissions. Whether 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 vis a vis the presumptive ceiling or upon whom settles the onus of rebuttal.

[337] Quite understandably, Jordan is silent on the relevance of appellate delay to ascertainment of the total length of time between charge and the actual or anticipated end of trial. After all, the time between charge and verdict in Jordandid not include any prerogative remedy or appellate proceedings. What seems envisaged at the first step of Jordan is a simple mathematical calculation of the time lapse between two fixed events: charge and the end of trial. What seems to be required is an answer to a question: How long did it take from charge to verdict to complete this case? Implicit is the assumption that during this entire period the accused would be “person charged with an offence” under s. 11(b).

[338] Despite leaving a final decision about the relevance of appellate delay to the Jordan framework to another day, I offer two observations about it in the circumstances of this case.

[339] First, unlike this case, Potvin did not involve extraordinary remedy proceedings to review a discharge at the conclusion of a preliminary inquiry and an appeal thereafter. Potvin involved a Crown appeal from a stay of proceedings entered by a trial court. That said, the Criminal Code provides no right of appeal from a discharge, or for that matter, from a committal, at the conclusion of a preliminary inquiry. The only judicial review mechanism is to invoke the extraordinary remedy jurisdiction of the superior court and thereafter the rights of appeal conferred by s. 784(1) of the Criminal Code. 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.

[340] Second, s. 11(b) may only be invoked by a “person charged with an offence”. Under Potvin, a person who is a party to an appeal is not a “person charged with an offence”: Potvin, at pp. 908-909. The same could be said of a person discharged at the conclusion of a preliminary inquiry. That person is not a “person charged with an offence” from the date of discharge until the discharge is set aside and committal ordered or a direct indictment preferred under s. 577 of the Criminal Code.

[341] In the result, I am satisfied that the total time between charge and verdict – 86 months – should be treated as 68 months in accordance with the position taken by counsel. There is no basis upon which to deduct defence delay from that period.

(3) Were There Exceptional Circumstances?

[342] The net delay here – total delay minus defence delay – exceeds the presumptive ceiling of Jordan by a wide margin. Exclusive of “review” delay, 68 months, more than double the presumptive ceiling. Inclusive of “review” delay, 86 months, almost triple the presumptive ceiling. The Crown bears the onus of showing that the delay is reasonable having regard to the presence of exceptional circumstances.

[343] Recall that exceptional circumstances lie outside the Crown’s control in the sense that those circumstances:

i. are reasonably unforeseen or reasonably unavoidable; and

ii. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. See: Jordan, at para. 69.

Once the ceiling has been breached, the Crown cannot simply point to a past difficulty and assert mission accomplished. The Crown must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling: Jordan, at para. 70.

[344] The respondent contends that unforeseeable developments in the pathological evidence were discrete exceptional events with significant implications for the complexity of the prosecution and the public interest in a joint trial. The two unforeseeable and exceptional events to which the respondent points as the genesis of a particularly complex trial were the opinions of Dr. Dexter and Dr. Pollanen.

[345] As I will explain, I am not persuaded that, singly or in combination, the opinions of Dr. Dexter and Dr. Pollanen rendered this prosecution particularly complex such that the time the case took to conclude – more than twice the presumptive ceiling – is justified and the delay, reasonable.

[346] First, it is important not to lose sight of the forest for the trees and overvalue the discrepancies between and among the medical experts as the case made its way through its various stages.

[347] When the charging decision was made on January 6, 2005 the only expert medical opinion about the cause of death was that of the examining pathologist, Dr. Ayroud. On January 6, 2005 Dr. Ayroud told investigators that the second incident – Kenny’s assault – did not contribute to Brian Fudge’s death. It possibly accelerated Fudge’s death, but he would have died anyway. The pathologist observed no physical sign of the second assault on the body of the deceased.

[348] Kenny was charged with assault in connection with his attack on Brian Fudge. By implication, the Crown and the investigators were of the view that the possibility that the second (Kenny’s) attack accelerated death was not sufficient to warrant a charge of manslaughter.

[349] About 11 months later, on December 19, 2005, a case conference about the death of Brian Fudge was held. Dr. Ayroud, Dr. McCallum, the Regional Supervising Coroner, investigators and two prosecutors were present. It is a reasonable inference that as a result of that conference, Dr. Dexter was asked by the Regional Supervising Coroner to review the post-mortem findings of Dr. Ayroud.

[350] About three months later, Dr. Dexter completed his review and report. He concluded that the brain damage and its sequelae that Brian Fudge suffered “could have been the natural result of the initial altercation”. He found no (specific) physical evidence on the body to specifically attribute injury to Kenny’s assault. The first assault was the major component of the brain damage. Absent the second assault, the first assault may have created enough brain damage to cause death. The second assault contributed a lesser component of damage and may have resulted in more severe damage to an already damaged brain.

[351] About a month later, Dr. Ayroud indicated that she wished “to slightly modify the comment section and would prefer to reword the cause of death”. She certified the cause of death as:

severe closed head injuries resulting from blunt force traumatism [sic] to the head

[352] That there would be a review of Dr. Ayroud’s initial opinion could have come as no surprise to the Crown. Two prosecutors were present at the meeting on December 19, 2005 with Dr. Ayroud and the Regional Supervising Coroner.

[353] The trial Crown made it clear that the decision to charge Kenny with manslaughter rested on the opinion of Dr. Dexter. But that opinion, when held up to the standard of “significant contributing cause” from R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, differs little from what Dr. Ayroud said, which prosecutors considered fell short of the mark. Each refers to a possible accelerant. Dr. Ayroud’s version was thought to fall short of what was required to give rise to a reasonable prospect of conviction or an adequate evidentiary predicate for a committal for trial. Dr. Dexter’s conclusion that Kenny’s assault may have resulted in more severe damage would not seem to advance the cause for Kenny’s indictment much further.

[354] It seems somewhat incongruous for the Crown to now advance Dr. Dexter’s opinion as a discrete event with implications that rendered the prosecution particularly complex, such as to justify proceedings that took 68 months to complete. Dr. Dexter, the one whose opinion was said to warrant indictment of Kenny for manslaughter, to bring his conduct within the causation envelope for manslaughter, was not even called as a witness at trial. Surely his opinion cannot now be characterized as a discrete event that converted a routine murder prosecution into a joint trial of compelling complexity.

[355] The respondent also suggests that Dr. Pollanen’s opinion, arriving “independent of any request from the Crown”, rejecting the conclusions of Dr. Ayroud and Dr. Dexter and declining to include or exclude either Kenny or Manasseri as having caused Fudge’s death, amounted to a discrete exceptional event that enhanced the complexity of the proceedings. I disagree.

[356] Dr. Pollanen offered his opinion in response to a request from the Crown seeking to retain a forensic pathologist who could assist them in the presentation of their case. Thus, while perhaps the report itself was technically unsolicited, the emergence of another forensic opinion did not come completely out of the dark. Dr. Pollanen did not testify at the preliminary inquiry or at the trial. His description of ACS as a potential mechanism of death, a mechanism rejected by all those experts called by the Crown, complicated nothing in terms of how the prosecution advanced.

[357] Third, while the expert medical opinions about cause of death were inherently somewhat complex, this was never a case that bristled with many or novel legal issues. Reduced to its essence, it required the jury to decide whether either or both Manasseri and Kenny caused Fudge’s death, and if so, what crime each committed.

[358] Fourth, even assuming some complexity arising from the nature of the expert opinion evidence adduced, what occurred moved it scarcely beyond the average joint murder trial and most definitely nowhere near the more than half a decade it took to complete.

[359] Finally, the trial Crown’s conduct of this case is a poster child for the culture of complacency towards delay so rightly condemned in Jordan. A leisurely approach to disclosure. Letting the schedule of Manasseri’s then counsel control setting the date for a preliminary inquiry more than two years after the accused were charged. Failure to pay any real heed to the s. 11(b) interests of Kenny whose counsel had been advancing them from the outset.

[360] The Crown has failed to discharge its burden of showing that the delay was reasonable having regard to the presence of exceptional circumstances.

(4) Does a Transitional Exceptional Circumstance Justify the Delay?

[361] George Kenny’s charges preceded the release of Jordan on July 8, 2016. As a result, we must consider whether the transitional exceptional circumstance justifies the delay.

[362] The onus is on the Crown to demonstrate the time expended to complete trial proceedings is justified by the parties’ reasonable reliance on the framework that existed for the determination of s. 11(b) claims prior to Jordan. This assessment is to be contextual and take into account how that prior framework was applied.

[363] For reasons that I will develop, I am satisfied that the transitional exceptional circumstance does not apply. The delay of 68 months (86 months if appellate delay is not deducted) is unreasonable. Several factors support this conclusion.

[364] First, in terms of the complexity of the case, a total delay of 68 months (86 months if appellate delay is not deducted) is simply too long for a joint trial of two accused for an unlawful killing where the central, if not the only issue, concerned the nature and extent of the criminal responsibility of each for that unlawful killing.

[365] Second, the total delay in this case should have been found to be unreasonable under a Morin analysis. The first application judge characterized much of the delay as neutral and found that the delay was not in excess of the guidelines. In doing so, he made at least three errors.

[366] First, the application judge failed to give sufficient weight to whether the delay caused by Kenny’s co-accused, which could have been remedied by severance or other means, had undermined the reasonableness of the delay. As observed in Vassell, this type of delay cannot be ignored. Second, the application judge failed to consider inferred prejudice at all. While he acknowledged some actual prejudice, which he did not find to be significant, the application judge completely neglected to consider inferred prejudice, despite the exceptionally lengthy period of delay in the face of ongoing assertions of a desire for a timely trial. Third, the application judge erred in his balancing analysis by failing to give sufficient consideration to the totality of the delay. The second application judge, while acknowledging that the totality was a concern, simply deferred to the findings of the first judge, in the absence of any further anticipated delays. Thus, under either approach, the total delay in this case was unreasonable. The Crown had not demonstrated that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.

[367] Third, a great deal of the delay resulted from procedural choices made or not made by the Crown and their lack of a clear plan to move the case forward to accommodate Kenny’s frequently-voiced but often unheard assertions of his s. 11(b) right.

[368] Recall how this all developed.

[369] Proceedings against Kenny began on January 7, 2005 when an information was laid charging him alone with counts of assault causing bodily harm for his assault of Daniel Narraway, and simple or common assault for his assault on Brian Fudge. The Crown subsequently elected to proceed summarily. Kenny sought a trial date in December, 2005, 11 months after Fudge died. A trial date was set for five days in April, 2006.

[370] The election of the Crown to proceed summarily ensured that this case would be tried in the Ontario Court of Justice without a preliminary inquiry. Presumably, the Crown considered that proceeding separately against Kenny and Manasseri and proceeding by summary conviction represented an efficient use of court resources, despite the obvious duplication of evidence that would occur.

[371] Three weeks before Kenny’s summary conviction trial, the Crown upgraded the assault charge relating to Brian Fudge to a count of manslaughter. Instead of laying a new information charging Kenny alone with assault causing bodily harm and manslaughter, those counts were included in an information charging Kenny and Manasseri jointly. When the joint information was laid, the Crown had not disclosed Dr. Ayroud’s original or revised report to Kenny’s counsel, although Dr. Dexter’s opinion on review had been provided.

[372] The procedural choice made by the Crown – to proceed jointly against Kenny and Manasseri – was obviously open to them. But that step ensured that absent waiver, the proceedings would include a preliminary inquiry and a jury trial in the Superior Court of Justice. The time set aside for Kenny’s summary conviction trial, which might have been available to adduce at least some of the non-medical opinion evidence, were he to have remained charged separately with manslaughter, was forfeited. And Kenny was yoked to Manasseri, who had already changed counsel at least once, and had not even set a date for a preliminary inquiry some 15 months after he was first charged.

[373] I do not for a moment suggest that the Crown was disentitled to proceed jointly against Manasseri and Kenny. But what it was required to do, but failed to do as later events confirmed, was to remain vigilant that its decision not compromise Kenny’s s. 11(b) rights. A joint trial is not some magic wand the Crown can wave to make a co-accused’s s. 11(b) rights disappear. The “right” to a joint trial only prevails to the extent that such a proceeding is in the interests of justice both pre and post-Jordan: Vassell, at para. 4; Jordan, at paras. 77 and 79.

[374] It soon became apparent that an expeditious preliminary inquiry was not in the cards. Manasseri’s counsel said he was not available for 11 months and requested a preliminary inquiry commencing in April, 2007. The Crown agreed. Kenny objected. So the preliminary was set to begin April 10, 2007 – 27 months after Kenny and Manasseri were arrested.

[375] At the very least, two procedural options were available to the Crown when the date for the preliminary inquiry was set. Severance of Kenny was one. Preferment of a direct indictment under s. 577 of the Criminal Code was another. Severance would have uncoupled Kenny from Manasseri, who seemed to lack any appetite for an expeditious trial. In Vassell, after acknowledging that the trial judge had found much of the delay was caused by Mr. Vassell’s six co-accused and their counsel, the Supreme Court of Canada stated:

But this delay cannot be ignored in assessing whether Mr. Vassell’s right to be tried within a reasonable time was breached. As this Court said in R. v. Morin, (citation omitted), at p. 800, “…an investigation of unreasonable delay must take into account all reasons for the delay in an attempt to delineate what is truly reasonable for the case before the court” (emphasis in original).”

[376] A direct indictment, which the prosecutor mentioned without elaboration on one occasion as not forthcoming from the Attorney General, might at least have resulted in a trial date in 11 months, rather than a preliminary inquiry.[^5] Instead of exercising the vigilance required to respect Kenny’s s. 11(b) rights, the Crown appeared to be content to let Manasseri’s counsel dictate the pace of the litigation.

[377] Fourth, the lack of initiative on the part of the Crown to respect Kenny’s s. 11(b) rights contrasts with Kenny’s assertion of them. Kenny sought an early summary conviction trial. Pursued disclosure requests when the charge was upgraded to manslaughter. Agreed to a trial in the Ontario Court of Justice if severed from Manasseri and agreed with Manasseri’s later request for a joint trial in the Ontario Court of Justice if Manasseri’s charge were reduced to manslaughter. He opposed Manasseri’s request for an 11 month delay in the scheduling of the preliminary inquiry. He advanced only three pre-trial motions, including the two requests for a stay on account of an infringement of s. 11(b). The other motion was for severance.

[378] Fifth, although I am satisfied that Kenny suffered some actual prejudice from the prolongation of these proceedings and that prejudice may reasonably be inferred from their length, not even the lack of significant prejudice, a factor upon which the Crown could previously rely, can serve as seven league boots to stretch the bounds of reasonableness this far: Williamson, at para. 30.

[379] Finally, to repeat something said in passing earlier. Even absent significant prejudice, the Crown had the tools readily at hand to move the case against Kenny forward. But it failed to pick up, much less to use those tools to do the work of which they were capable. A separate trial for Kenny, according to the then state of the expert medical opinion evidence, a lesser player in the unlawful death of Brian Fudge, was at once viable, reasonable and in the interests of justice.

CONCLUSION

[380] I would allow both appeals and set aside the convictions entered at trial. I would order a new trial for Manasseri and enter a stay of proceedings for Kenny. I do not reach Kenny’s sentence appeal.

Released: September 28, 2016 (DW)

“David Watt J.A.”

“I agree P. Lauwers J.A.”

“I agree Grant Huscroft J.A.”

[^1]: This charge was originally laid as an assault charge. Kenny was also charged with a count of assault causing bodily harm in relation to the assault on Brian Fudge’s friend, Daniel Narraway, who suffered a swollen jaw and chipped tooth.

[^2]: In most cases arising under s. 589, the accused charged in the murder and non-murder counts is/are the same person(s). However, the language in the section is sufficiently expansive to permit joinder where, as here, different accused are charged in the non-murder count than in the murder count, provided the non-murder count arises out of the same transaction as the murder count. See, for example, R. v. Mattice (1992), 1992 CanLII 12808 (BC SC), 75 C.C.C. (3d) 569 (BCSC).

[^3]: Approximately 4.5 months at the Ontario Court of Justice and 5 months at the Superior Court of Justice.

[^4]: See also, R. v. Coulter, 2016 ONCA 704, where, in applying the same framework and analysis as here, the court reached a different result based on the facts of that case.

[^5]: Direct indictments under s. 577(a) of the Criminal Code have been infrequent in this province. However, after Jordan, with full disclosure as required by Stinchcombe, the Crown should give very serious consideration to preferring direct indictments to fulfill its mandate under s. 11(b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan.