COURT OF APPEAL FOR ONTARIO
CITATION: R. v. McNeill-Crawford, 2020 ONCA 504
DATE: 20200811
DOCKET: C66900
Pepall, Hourigan and Roberts JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jeffrey McNeill-Crawford
Appellant
Andrew Furgiuele and Zahra Shariff, for the appellant
Brendan Gluckman, for the respondent
Heard: in writing
On appeal from the conviction entered by Justice Lorelei M. Amlin of the Ontario Court of Justice on January 23, 2019.
Roberts J.A.:
A. Overview
[1] The appellant appeals from his conviction for trafficking in methadone. He has served his 18-month sentence and has abandoned his sentence appeal. He says the trial judge erred in her dismissal of his s. 11(b) Charter of Rights and Freedoms application and in her treatment of the expert evidence at trial. He requests a stay of proceedings. In the alternative, he seeks a new trial.
[2] For the reasons that follow, I would dismiss the appeal.
B. Background
(1) Circumstances of the Offence
[3] The appellant and Jason MacDonald were residents at a transition home known as Discovery House in Guelph, Ontario. The appellant was under the care of a physician with Ontario Addiction Treatment Centres. He was given access to methadone and had been approved for take-home doses.
[4] At around 9:00 a.m. on March 13, 2017, the appellant was administered one dose of methadone and received three additional doses for March 14, 15, and 16, 2017, from the clinic where he was being treated. He immediately brought them back to his room at Discovery House. The trial judge found that upon arriving home, the appellant gave Mr. MacDonald one dose of the methadone. Mr. MacDonald and his girlfriend, Bridgette Podniewicz, overdosed on the methadone they consumed in Mr. MacDonald’s bedroom. Tragically, Mr. MacDonald died as a result. Fortunately, Ms. Podniewicz was revived in hospital.
(2) Evidence at Trial
[5] The Crown’s case against the appellant was largely circumstantial.
[6] Ms. Podniewicz testified about conversations she had with the appellant and Mr. MacDonald concerning the appellant’s access to methadone, the exchange of methadone for cigarettes, although she did not see any exchange, and the effects of methadone. On March 13, 2017, Mr. MacDonald went out to get some coffee, donuts and cigarettes. After he returned, and shortly after 9:00 a.m., Ms. Podniewicz heard the front door of the residence close, and Mr. MacDonald went to see if the appellant had returned. Mr. MacDonald left his bedroom and then returned with a bottle of methadone. She testified that Mr. MacDonald poured them drinks from the bottle and then later “finish[ed] the bottle”.
[7] Police were called to investigate a sudden death at Discovery House. They attended and found Mr. MacDonald to be dead and Ms. Podniewicz to lack vital signs. She was transported to hospital where she was revived. Before being taken to the police station, the appellant asked if he could take his medication with him and opened a locked box in his bedroom closet. Two full bottles of methadone with March 15 and 16, 2017 ingestion dates remained in that locked box. An empty bottle of methadone, bearing a label with an ingestion date of March 14, 2017 and the appellant’s name, was later seized from the appellant’s bedroom closet and identified by Ms. Podniewicz as the bottle Mr. MacDonald brought into his bedroom.
[8] Swabs of the inside of the empty methadone bottle and its cap seized from the appellant’s closet were sent to the Centre of Forensic Sciences (“CFS”) for analysis. Blood was also taken for analysis from Mr. MacDonald’s body and Ms. Podniewicz. The contents of two glasses from Mr. MacDonald’s room from which Ms. Podniewicz said they drank were also analyzed.
[9] According to the toxicology and DNA expert evidence submitted at the appellant’s trial, methadone was found in a short glass, one of the glasses from which Ms. Podniewicz said they drank; methadone was found in the blood of Mr. MacDonald and Ms. Podniewicz; and Mr. MacDonald could not be excluded as the source of DNA found on the short glass, the lip of the methadone bottle and the bottle cap. The probability that the DNA found belonged to someone other than Mr. MacDonald was less than one in one quadrillion. The appellant maintained that Mr. MacDonald’s DNA was placed on the items by way of a secondary or tertiary transfer because the bottle was placed on the appellant’s bed after seizure and not swabbed until it was returned by Health Canada following testing for methadone.
(3) Trial Judge’s Decision
[10] The trial judge dismissed the appellant’s application for a stay of proceedings pursuant to s. 11(b) of the Charter. The information was sworn on March 17, 2017 and the appellant’s trial ended on January 9, 2019. The trial judge concluded that, while the delay was presumptively unreasonable given that it exceeded the 18-month ceiling set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Crown had established exceptional circumstances that rebutted the presumption. In particular, the trial judge found that the delay was principally caused by the parties’ good faith but mistaken estimate of the number of days required for the trial. As a result, once that period of time and the largely conceded defence delay were deducted, the time that this matter took to complete was well under the presumptive 18-month ceiling for matters before the Ontario Court of Justice.
[11] The trial judge convicted the appellant of trafficking methadone because she was satisfied that there was no other reasonable inference from the trial evidence other than Mr. MacDonald receiving the methadone from the appellant. In particular, she based this conclusion on her findings that (1) Mr. MacDonald’s DNA was found on the lip of the methadone bottle and the interior of the bottle cap because he drank from it; (2) the appellant received three methadone doses to take with him on the day of Mr. MacDonald’s overdose, two of which were found in a locked box in the appellant’s bedroom; (3) the empty methadone bottle containing Mr. MacDonald’s DNA was found in the appellant’s bedroom closet; (4) Ms. Podniewicz was a party to conversations between the appellant, Mr. MacDonald and her concerning the exchange of methadone for cigarettes and the effects of methadone; and (5) she testified that she consumed methadone with Mr. MacDonald.
C. Issues and analysis
[12] The appellant raises two issues on his conviction appeal.
[13] First, he argues that the trial judge erred in dismissing his s. 11(b) Charter application to stay the proceedings for delay because (1) she failed to include, in her consideration of delay, the period between January 9, when the trial concluded, and January 23, 2019, when the ruling on the Charter application and the verdict were rendered; and (2) she mischaracterized the period from September 13, 2018 to January 9, 2019 as an exceptional circumstance. Had she included those periods, the appellant argues, the delay would have exceeded the presumptive ceiling by over four months in breach of the appellant’s s. 11(b) Charter rights. Therefore, in his submission, the proceedings should be stayed.
[14] Second, and in the alternative, the appellant argues the trial judge misapprehended the evidence given by one of the forensic experts concerning the presence of Mr. MacDonald’s DNA on the appellant’s methadone bottle. This misapprehension, the appellant submits, was central to the trial judge’s reasoning and led to the appellant’s conviction. Therefore, if the proceedings are not stayed, the appellant seeks a new trial.
[15] I am not persuaded by these submissions and would dismiss the appeal.
(1) The Trial Judge Did Not Err in Her S. 11(b) Charter Analysis
[16] As this court recently stated in R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, appeal as of right filed, [2020] S.C.C.A. No. 90, the standard of review on this issue is well established. Deference is owed to a trial judge's underlying findings of fact, but the characterization of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.
[17] I see no error in the trial judge’s application of the Jordan framework.
(a) Total Delay
[18] As required in the first step of the Jordan analysis, the trial judge calculated the total delay from the charge to the actual end of the trial on January 9, 2019: Jordan, at para. 60; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 21. She determined that 21 months and 25 days had elapsed from the charge on March 17, 2017 to the conclusion of his trial on January 9, 2019.
[19] Although she did not have the benefit of the Supreme Court’s decision in R. v. K.G.K., 2020 SCC 7, 443 D.L.R. (4th) 361, the trial judge correctly concluded that the appropriate end date for the purpose of determining if the delay exceeded the Jordan presumptive ceiling was the end of the trial rather than the rendering of the verdict.
[20] In K.G.K., the Supreme Court clarified that while the protection of s. 11(b) extends beyond the end of the evidence and argument at trial, up to and including the date upon which the sentence is imposed, the Jordan presumptive ceilings do not include verdict deliberation time. They apply from the date of the charge until the actual or anticipated end of the evidence and argument and no further: at paras. 3, 23, 31, 33 and 50. The Court explained that the Jordan ceilings were not designed to exhaust the s. 11(b) analysis and cover all sources of delay. Rather, they represent a specific solution designed to address a specific problem, namely, a culture of complacency and excessive delay associated with bringing accused persons to trial: K.G.K., at para. 34.
[21] A different test is required in determining whether an accused person’s s. 11(b) rights have been infringed on account of verdict deliberation time: K.G.K., at paras. 24, 51 and 54. Where an accused person claims that the trial judge’s verdict deliberation time breached his or her s. 11(b) right to be tried within a reasonable time, he or she must establish that the deliberations took markedly longer than they reasonably should have in all of the circumstances: K.G.K., at para. 54. The burden on the accused is a heavy one due to the operation of the presumption of judicial integrity.
[22] The appellant’s argument that the trial judge’s verdict deliberation time should be included in the calculation of total delay is therefore foreclosed by K.G.K. He does not argue that the trial judge’s verdict deliberation time, by itself, breached his s. 11(b) rights. Indeed, this argument would be very difficult given the verdict deliberation time in this case amounted to only 14 days.
(b) Defence Delay and Exceptional Circumstances
[23] Returning to the trial judge’s analysis, she next subtracted delay attributable to the defence: Jordan, at para. 60. The trial judge calculated defence delay as 80 days.[^1] The appellant does not contest this finding on appeal. Deducting 80 days leaves a net delay of 19 months and 5 days. The trial judge properly acknowledged that since the net delay exceeded the 18-month ceiling, it was presumptively unreasonable and that the respondent had to establish the presence of exceptional circumstances to rebut this presumption, failing which a stay would follow: Jordan, at para. 47.
[24] The main focus of the trial judge’s subsequent analysis and the parties’ submissions was the 3-month and 28-day period of delay between September 13, 2018 and January 9, 2019. The trial judge’s characterization of this period as an exceptional circumstance and her deduction of this period from the delay in issue brought the delay well under the Jordan presumptive ceiling.
[25] The appellant challenges the trial judge’s characterization of this period as arising from an exceptional circumstance, namely the parties’ good faith but mistaken estimate of the time required for trial. He submits that the delay should be solely attributable to the Crown: but for the late disclosure of the DNA and toxicology reports from the CFS, the Crown’s unilateral release of the third scheduled trial day, and the Crown’s failure to properly prepare its witness, Ms. Podniewicz, the trial could have been completed within the Jordan presumptive ceiling.
[26] I do not accept these submissions.
[27] The Supreme Court of Canada in Jordan generally defined exceptional circumstances as those that lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise: at para. 69.
[28] It is well recognized that good faith but mistaken estimates of trial time may give rise to exceptional circumstances. As the Court noted in Jordan, at para. 73: “Trials are not well-oiled machines. … [I]f the trial goes longer than reasonably expected — even where the parties made a good faith effort to establish realistic time estimates — then it is likely that the delay was unavoidable and may therefore amount to an exceptional circumstance.” See also: Jurkus, at para. 55; R. v. Antic, 2019 ONCA 160, 430 C.R.R. (2d) 46, at para 8, leave to appeal refused, [2019] S.C.C.A. No. 128.
[29] The trial judge described how the miscalculation of the trial time estimate, by both parties, was made in good faith. She made the following findings to explain how the estimate of a two-day trial became a six-day trial and why she considered that there were exceptional circumstances:
Four Crown witnesses testified as anticipated. The voluntariness voir dire that the trial judge instigated was unanticipated and took place on the first scheduled day of trial, August 28, 2018.
Ms. Podniewicz testified over two days on September 12 and October 3, 2018.
The expert evidence for both the Crown and defence, the remainder of the DNA evidence and the deferred cross-examination of Sergeant Henderson, the officer who seized and swabbed the methadone bottle, was heard on one day, on January 7, 2019.
Almost two full days – January 8 and 9, 2019 – were devoted to the parties’ submissions. Less than one hour was used for continuity evidence related to the expert evidence.
[30] The trial judge rejected the appellant’s contention that the delay was not caused by a good faith but mistaken trial estimate but should be attributed to the late disclosure of the expert’s reports and the Crown’s release of one trial day. She found that neither party anticipated that Ms. Podniewicz’s evidence would take two days rather than one. She concluded that these events made no difference to the mistaken trial estimate. She determined that even without considering the trial time required for the expert evidence, the original trial estimate could not have accommodated this trial.
[31] In my view, the trial judge’s explanation for the increased trial time was open to her to make. There is no basis to interfere with it on appeal.
[32] Having determined that the trial exceeded the good faith, reasonable estimates, the trial judge went on to consider “whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling”: Jordan, at para. 74. She found that the Crown was unaware of the police’s submission of various items to the CFS for toxicological and DNA testing until June 2018. The Crown conscientiously responded to further requests for disclosure including the technical underpinnings for the reports and provided reports and further disclosure upon receiving them. Defence counsel was on leave and requests for further disclosure did not start until August 2018. The trial judge also recognized the Crown’s efforts to mitigate the delay by securing an additional trial day in August 2018 and in October when a fourth date was being canvassed, when it became obvious to the parties that further trial days would be required. While not attributable as defence delay but rather as efforts to mitigate delay, the trial judge observed that there were numerous dates when the court and the Crown were available and defence counsel was not. Her findings are firmly rooted in the record and entitled to deference on appeal.
[33] The trial judge determined that the trial time exceeded the good faith estimates of both parties, and that this was an “exceptional circumstance”. As a result, she deducted 3 months and 28 days, which brought the delay under the Jordan ceiling by 2 months and 23 days.
[34] I find no error in the trial judge’s dismissal of the appellant’s s. 11(b) Charter application on this basis. This ground of appeal must therefore fail. It is unnecessary for me to determine whether the trial judge erred in concluding in the alternative that her medical leave from October 31 to December 7, 2018 also constituted an exceptional circumstance.
(2) The Trial Judge Did Not Misapprehend the DNA Expert Evidence
[35] The appellant submits that the trial judge erred by misapprehending the evidence given by the Crown’s forensic expert, Christian Taylor, concerning the mechanism of transfer of the DNA onto the methadone bottle. Specifically, the appellant says that the trial judge failed to consider Mr. Taylor’s response during cross-examination that he could not opine one way or the other about whether a primary or secondary transfer of the DNA to the methadone bottle was more likely. As a result, the appellant argues, the trial judge’s conclusion that the DNA was transferred to the methadone bottle because Mr. MacDonald put his lips on that bottle was speculative and therefore erroneous.
[36] According to the appellant, the possibility of a secondary or tertiary transfer of the DNA by the placement of the bottle on the appellant’s bed prior to forensic testing was just as likely. Given that these findings were crucial to the trial judge’s verdict, the appellant requests a new trial.
[37] I do not accept these submissions. The trial judge did not misapprehend Mr. Taylor’s evidence. Moreover, her conclusion that Mr. MacDonald put his lips on the methadone bottle was supported not only by the DNA evidence, but by other evidence that the trial judge was entitled to accept.
[38] It is important, first, to put what the appellant calls Mr. Taylor’s “clarification” of his opinion into the proper context of the entirety of his evidence. Mr. Taylor opined that given the amount and quality of DNA retrieved for testing, the primary transfer of DNA from person to item was more likely. While he could not absolutely exclude the possibility of indirect transfer of DNA from Mr. MacDonald, he said: “[From] the amount of DNA we recovered and the quality of the profile, I would not expect to be able to obtain these DNA results from tertiary transfer or secondary DNA transfer in the absence of a body fluid”. Mr. Taylor opined that the possibility of an indirect transfer was an “extreme scenario”, absent “some very rich source of DNA on the bed sheet and it was handled, rubbed against that bed sheet quite a bit, and then there’s vigorous handling to somehow get that DNA from the outside of the bottle to the inside of the bottle”. Not knowing all the specific circumstances of this case, for example, whether there was evidence of a wet body fluid on the appellant’s bedclothes, and because the performed tests did not seek to identify the specific type of bodily fluid that was the source of the DNA in this case, Mr. Taylor was unable to say with certainty how in actual fact the transfer took place.
[39] That Mr. Taylor did not have sufficient information to allow him to opine as to the exact mechanism of the transfer of Mr. MacDonald’s DNA does not modify or attenuate his core opinion that based on the amount of DNA and quality of the DNA profile retrieved in this case, primary transfer was the most likely mechanism absent the secondary transfer originating from a very rich source of DNA such as a wet body fluid.
[40] It was up to the trial judge, not the forensic expert, to determine how Mr. MacDonald’s DNA was deposited on the methadone bottle based on all the evidence before her. The DNA expert opinion evidence was only one piece of evidence on which the trial judge relied for her conclusion that: “I find that Mr. MacDonald put his lips on that methadone bottle. That is how the DNA ended up on the lip of the bottle, not due to contamination from shared living arrangements, from being put on [the appellant’s] bed or from being sent to Health Canada.”
[41] The trial judge’s conclusion was also supported by other evidence that she was entitled to accept. Ms. Podniewicz testified that she had participated in conversations about the appellant’s access to methadone, the exchange of methadone for cigarettes, and the effects of methadone; that Mr. MacDonald returned to his bedroom with one of the methadone bottles identified as belonging to the appellant; and that he drank from the short or the long glass, and the methadone bottle. The toxicology report confirmed that Mr. MacDonald and Ms. Podniewicz had methadone in their blood and there was methadone in the short glass. The empty methadone bottle was one of the three doses issued to the appellant that morning and was found in the appellant’s closet. The other two full bottles with later ingestion dates were in the appellant’s locked box in his bedroom closet.
[42] The trial judge’s conclusion that the only reasonable inference that could be drawn was that the appellant had given the methadone to Mr. MacDonald was firmly rooted in the evidence that the trial judge was entitled to accept. There was no evidence supporting the existence of the “extreme scenario” postulated by Mr. Taylor that could have resulted in a detectable secondary or tertiary transfer of Mr. MacDonald’s DNA on the methadone bottle and cap. I agree with the trial judge’s determination that such an inference would have been speculative.
D. Disposition
[43] Accordingly, I would dismiss the appeal.
Released: August 11, 2020 (“S.E.P.”)
“L.B. Roberts J.A.”
“I agree. S.E. Pepall J.A.”
“I agree. C.W. Hourigan J.A.”
[^1]: The respondent submits this figure should be 81 days. However, as will be explained, the extra day makes no difference in the calculation of delay.