Court of Appeal for Ontario

Date: 2018-12-11

Docket: M49402

Benotto J.A. (In Chambers)

Between

Her Majesty the Queen in right of Ontario (Ministry of Labour) Moving Party

and

Andrew Nugent, Richard Guillemette and Tyler Buckingham Responding Parties

Counsel

Daniel Kleiman and Indira Stewart, for the moving party

Scott K. Fenton, Lynda E. Morgan, Jeremy Warning, and Richard Stephenson, for the responding parties

Heard: October 4, 2018

Reasons for Decision

Introduction

[1] On June 5, 2015, a worker at the Detour Lake Mine was poisoned by cyanide while on the job. He died that day. Several criminal and regulatory charges were brought against the owner of the mine and the supervisors on site. The prosecutions were complex. With the assistance of the case management judge, the criminal charges were resolved, and it was agreed that some of the regulatory charges would proceed to trial. The Ontario Court of Justice stayed the regulatory charges pursuant to s. 11(b) of the Charter because the delay exceeded the presumptive ceiling. The time from the date the information was sworn to the anticipated end of trial was 21 months. The application judge added two months for judicial deliberation, for a total of 23 months.

[2] The Superior Court of Justice dismissed the appeal. The Crown now seeks leave to appeal to this court.

Facts

[3] Detour Lake Mine is an open-pit gold mine north-east of Cochrane, Ontario. It is owned and operated by Detour Gold Corporation ("DGC"). The mine uses an intensive cyanide reactor ("the reactor") to leach ore from mined materials.

[4] The respondents were employed by DGC at the mine. Nugent was the acting process plant manager, Buckingham was a supervisor, Guillemette was the health and safety manager.

[5] Denis Millette – a 52-year-old worker – was an experienced millwright. He had been working for DGC for just three months when he was called to replace a leaking expansion joint on a pump in the reactor. He was not told about the potential for exposure to cyanide or the protections required.

[6] For over an hour Millette knelt on the floor covered in cyanide wearing regular overalls which absorbed the solution. When his lips turned white and he began to shake, members of an emergency response team suspected he was having a cardiac incident. His wet clothing was not removed. By the time Ornge emergency services arrived, he had stopped breathing and could not be resuscitated. The cause of death was "cyanide intoxication via skin absorption".

[7] Cyanide poisoning can be treated with an intravenous antidote and oxygen provided they are administered immediately. Neither a cyanide kit, nor emergency oxygen were available at the plant.

The Charges

[8] On April 15 and May 3, 2016, following an investigation, DGC, Nugent and Michael Okros (the operator of the reactor) were charged with criminal negligence causing death.

[9] On May 26, 2016, DGC and the respondents, Nugent, Buckingham and Guillemette, were charged under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). DGC was charged with 15 counts. The respondents were each charged with the following two offences:

1. Failing to ensure that a millwright who was required to work in the in-line leach reactor area of the mill used or wore such personal protective equipment, clothing and devices as were necessary to protect him from the hazard of exposure to sodium cyanide, contrary to s. 27(1)(a) of OHSA.

2. Failing to take the reasonable precaution of providing information, instruction and/or supervision to Denis Millette sufficient to protect him from the hazard of working with and around sodium cyanide solution, contrary to s. 27(2)(c) of OHSA.

The Prosecution

[10] This case involved two concurrent prosecutions, two prosecuting Crown lawyers, multiple co-accused, voluminous disclosure and expert evidence.

[11] The first appearance for the OHSA charges was June 23, 2016 in Cochrane. At the Crown's request, the charges were linked to the criminal charges and the joint appearance was set for July 26, 2016. The Supreme Court's decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 was released on July 8, 2016, between the two appearances.

[12] The disclosure involved six large binders and a hard drive containing thousands of pages of documents. On November 22, 2016, a judicial pre-trial conference ("JPT") was set for February 22, 2017 with a return date of March 21, 2017. Resolution discussions were ongoing so the JPT was continued two days later on March 23, 2017 with another return date of April 18, 2017 and a further continuing JPT on April 21, 2017.

[13] The April 21 date did not proceed because on April 18 counsel advised the case management judge that resolution discussions were "at an advanced stage" and the defence counsel "need time to confirm their instructions". All parties agreed to an adjournment to May 16, 2017. On May 16, 2017, the parties were close to resolving matters so, on consent, the matter was adjourned to June 9, 2017. On May 25, 2017, counsel for the respondent Buckingham wrote to the OHSA Crown about trial management issues. The Crown responded on June 8, 2017, the day before the JPT.

[14] On June 9, 2017, with the assistance of the case management judge the criminal charges were resolved. It was agreed that DGC would plead guilty to criminal negligence causing death and the OHSA charges against the corporation would be withdrawn. The criminal charges against Nugent and Okros would also be withdrawn.

[15] The OHSA charges against the respondents were not resolved on June 9. The case management judge commented that the respondents needed time to review the Crown witness list and offered to meet counsel in Toronto in order to assist discussions. In the meantime, arrangements were made to schedule a four-week trial. The first date offered by the court was January 8, 2018. Counsel for the respondent, Guillemette, was unavailable during the weeks of January 8 or 22, 2018. The trial was scheduled to begin on January 29, 2018, the first date that all defence counsel were available. A continuing JPT was scheduled for October 25, 2017.

[16] On August 30, 2017, DGC entered a guilty plea to one count of criminal negligence causing death. DGC was fined $1.4 million and ordered to pay a Victim Fine Surcharge of $420,000 and restitution of $806,333. The criminal charges against Nugent and Okros were withdrawn as were the regulatory charges against DGC. The respondents' counsel then brought an 11(b) application which was set for October 6, 2017. Consequently, the JPT did not proceed on October 25.

OCJ Decision

[17] The time from the swearing of the information to the estimated end of trial was 21 months. This was 3 months over the presumptive ceiling. The application judge increased the time over the ceiling by adding two months for judicial deliberation bringing the total time to 23 months. The Crown did not allege defence delay so the total delay was the same as net delay. The application judge found the net delay of 23 months to be presumptively unreasonable.

[18] To rebut this presumption, the Crown relied on the complex case exception. The application judge recognized that the Crown had proceeded appropriately. In particular, the application judge recognized:

• the prompt delivery of voluminous disclosure (within two months of the first disclosure request);

• the seamless substitution of one senior Crown for another in the face of a sudden unexpected absence, averting any potential delays;

• the early joining of the two sets of charges, streamlining the process and avoiding needless duplication of appearance; and

• the Crown's ready acceptance of any and all dates offered by the court; the Crown made its request that these charges be heard by a provincial court judge on the first appearance, and ultimately withdrew all 15 charges against the co-accused, DGC.

[19] Despite finding that the Crown took appropriate steps, the application judge determined that the steps taken by the Crown were inadequate to meet the Crown's duty to develop and follow a concrete plan to minimize delay as required by Jordan. In particular, the Crown had not taken reasonable steps to move the case to trial under the presumptive ceiling in the event it did not resolve, by securing the trial dates before the JPT process was complete. The application judge also referred to the Crown's failure to respond to the May 25, 2017 email until the eve of the next JPT, and found that the JPT was largely frustrated by the Crown's late production of a witness list.

Appeal to SCJ

[20] The appeal judge found that the application judge applied the correct standard as to whether the Crown had developed a concrete plan and that the finding that the Crown did not secure trial dates in a timely manner or take steps to streamline the evidence to be introduced at trial was entitled to deference.

Leave to Appeal to This Court

[21] The test for leave to appeal to this court is set out in s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33:

Appeal to Court of Appeal

131 (1) A defendant or the prosecutor or the Attorney General by way of intervention may appeal from the judgment of the court to the Court of Appeal, with leave of a judge of the Court of Appeal on special grounds, upon any question of law alone or as to sentence.

Grounds for leave

(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.

Appeal as to leave

(3) No appeal or review lies from a decision on a motion for leave to appeal under subsection (1).

[22] This is a stringent test requiring the applicant to establish that the appeal involves a question of law alone and is essential for the public interest or for the due administration of justice.

[23] The proposed grounds for appeal are that the appeal judge failed to recognize that:

1. the trial judge erred by including in the total delay the anticipated time for judicial deliberation after trial;

2. the trial judge misapplied the standard imposed by Jordan that the Crown develop and follow a concrete plan;

3. the trial judge erred in failing to consider the respondents' requests and the court's acquiescence in the delay in connection with resolution discussions;

4. the trial judge erred in failing to attribute any delay to the respondents.

[24] The respondents submit that each of these proposed grounds involve – as found by the appeal judge – questions of mixed fact and law. As such, no appeal lies to this court: see Ontario (Ministry of the Environment and Climate Change) v. Sunrise Propane Energy Group Inc., 2018 ONCA 461. In addition, they submit that deference is owed to the application judge's conclusions about whether the Crown acted reasonably and whether the case met the "exceptional circumstances" threshold: Jordan, at paras. 78-79.

Issues

[25] The issue is whether the proposed appeal involves a question of pure law and if so, whether the appeal is essential for the public interest or for the due administration of justice.

Analysis

[26] I begin with a brief review of the Jordan principles. I then consider whether the issues raised satisfy the test for leave.

[27] The majority in Jordan proposed a new framework for Charter applications under s. 11(b). The framework is based on a ceiling beyond which delay is presumptively unreasonable: 18 months for cases tried in provincial courts without a preliminary inquiry, and 30 months for cases tried in provincial courts after a preliminary inquiry or in superior courts. Delays attributable to the defence are to be subtracted to arrive at net delay. Where the net delay exceeds the presumptive ceiling, the Crown bears the onus of establishing that the delay was reasonable because of the presence of exceptional circumstances. Exceptional circumstances have two components: (i) they are reasonably unforeseen or reasonably unavoidable, and (ii) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise: Jordan, at para. 69 and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 58.

[28] Generally, there are two types of exceptional circumstances: discrete events and – as applies here – complexity. Where the delay exceeds the ceiling, the court will look to the complexities of the case to determine whether the delay or passage of time is nonetheless reasonable. [1] In considering exceptional circumstances caused by complexity, the court should consider whether the Crown has developed and followed a "concrete plan" to minimize delay occasioned by the complexity. As Jordan stated at paras. 79 and 81:

[T]he trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by the complexity. Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control.

[T]he presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. [Citations omitted; italics in original; underlining added.]

[29] Jordan has been previously considered multiple times by this court. In R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135, this court indicated that the complexity of the case must be assessed more broadly over the course of the entire proceeding, rather than on how the case presents at trial: paras. 57 and 60-64; see also Cody, at para. 64.

[30] In R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. 513, at para. 308, this court identified the types of actions required of a Crown that would demonstrate it took reasonable steps. At para. 308, Watt J.A. said:

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. [Emphasis in original.]

[31] This court also discussed the complex case exception in R. v. Saikaley, 2017 ONCA 374, 348 C.C.C. (3d) 290, leave to appeal refused, [2017] S.C.C.A. No. 284. At paras. 47 and 48, the court stated:

[W]e do not read Jordan as requiring the Crown to take any and all steps proposed by the defence to expedite matters. … So long as the Crown acts reasonably and consistently with its duties, it would be unconscionable to deny it the benefit of the complex case exception to the 30-month presumptive ceiling.

In our view, the Crown did have a concrete plan to move this very complex case forward. Nothing in the Crown's conduct complained of exacerbated the delay. To the contrary, the Crown acted reasonably and took steps to reduce the delay, including severing charges, and withdrawing charges against the appellant's wife. Accordingly, in our view, although the net delay in this case exceeds the presumptive ceiling, we are satisfied that the case was particularly complex and that the delay was justified.

[32] More recently, this court considered the standard of review when dealing with the characterization of actions constituting delay. In R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, leave to appeal dismissed [2018] S.C.C.A. No. 325, this court made it clear that the ultimate decision as to whether there has been unreasonable delay is subject to review on a standard of correctness. So too is the characterization of the period of delay. Justice Fairburn stated in Jurkus, at para. 25:

I do not agree that the designation of a period of time as defence delay is a finding of fact that is owed deference. Although underlying findings of fact are reviewed on a standard of palpable and overriding error, the characterization of those periods of delay and the ultimate decision as to whether there has been unreasonable delay are subject to review on a standard of correctness.

[33] There are no facts in dispute in this proposed appeal. The issue is the characterization of the Crown's conduct. According to Jurkus, this is a question of law.

[34] Even apart from Jurkus, I conclude that questions of pure law are raised on these issues:

1. the role of acquiescence by defence counsel in the settlement process and the involvement and concurrence of the case management judge;

2. the addition of judicial reserve time to the net delay, a factor over which the Crown has no control [2]; and

3. the requirement that the Crown secure a trial date during the ongoing JPT process.

[35] These questions of law bear individually and collectively on the administration of justice. They engage the often-competing imperatives of resolution involving judicial case management and delay reduction, the reliability of trial lists if dates are secured which may or may not be needed, and the addition of judicial reserve time. These issues of law are essential to the administration of justice and engage the delay reduction issues at the heart of Jordan.

Disposition

[36] For these reasons, leave to appeal is granted.

"M.L. Benotto J.A."

Footnotes

[1] Although the charges were laid before the release of Jordan, the Crown does not rely on the transitional exceptional circumstances.

[2] This court considered the question of whether the time a judgment is under reserve is included in the calculation of total delay in R. v. MacIsaac, 2018 ONCA 650, 365 C.C.C. (3d) 361, at paras. 32-37, and determined it was not necessary to resolve the issue on the facts of that case. The Alberta Court of Appeal determined that time consumed by reserved decisions should be excluded in the s. 11(b) analysis: R. v. Mamouni, 2017 ABCA 347, 58 Alta. L.R. (6th) 283, leave to appeal refused, [2018] S.C.C.A. No. 176, at para. 92.