COURT OF APPEAL FOR ONTARIO

DATE: 2024-07-17 DOCKET: C70784

Gillese, Coroza and Sossin JJ.A.

BETWEEN

His Majesty the King Appellant

and

Christopher Musclow Respondent

COUNSEL: Stéphane Marinier, for the appellant Andrea VanderHeyden, for the respondent

Heard: March 19, 2024

On appeal from the stay of proceedings entered by Justice Janet Leiper of the Superior Court of Justice on June 10, 2022 with reasons reported at 2022 ONSC 3499.

Coroza J.A.:

I. INTRODUCTION

[1] Christopher Musclow, the respondent, was charged with possession of fentanyl for the purpose of trafficking. Prior to his trial in the Superior Court of Justice, he brought an application to stay the proceedings alleging a breach of his right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms. The total delay in the case was approximately 59.5 months. The application judge deducted 18.5 months for defence delay and attributed 21 months’ delay to exceptional circumstances resulting from the illness of a police officer whose testimony was required by both parties in the case. This yielded a remaining delay of 20 months, well under the 30-month presumptive ceiling for cases being tried in the superior courts: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[2] In a case where delay falls below the ceiling after any relevant deductions are accounted for, Jordan holds that delay may still be unreasonable if the defence establishes two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. The majority in Jordan expected stays in below-ceiling cases to be “rare, and limited to clear cases”: Jordan, at para. 48.

[3] Although the remaining delay was under the presumptive ceiling in this case, the application judge found that the delay was unreasonable and entered a stay of proceedings. The application judge reached this conclusion on the basis that taking a “bird’s-eye view” of the case required her to consider the total length of the entire proceeding and thus the delay caused by the illness of the officer, when determining whether the case took markedly longer than it reasonably should have.

[4] The Crown appeals. It advances three grounds of appeal. The principal ground of appeal is that the application judge erroneously applied the Jordan framework for assessing below-ceiling delay. The core submission on this ground of appeal is that while the application judge correctly deducted a period of delay for the officer’s illness as an exceptional circumstance, she then erroneously reconsidered that circumstance in determining whether the case took markedly longer than it reasonably should have. The second ground of appeal is that the application judge erred in her conclusion that the respondent had taken meaningful steps demonstrating a sustained effort to expedite the proceedings. Third, the Crown argues that the application judge erred by failing to deduct a further 3.5 months of defence delay that would have resulted in a remaining delay of about 17 months.

[5] For the reasons that follow, I conclude that the application judge erroneously applied the Jordan framework in finding that the case took markedly longer than it reasonably should have and that this was a “clear” case that required a stay of proceedings despite the remaining delay falling well below the presumptive ceiling. I would therefore allow the appeal.

II. HISTORY OF THE PROCEEDINGS

[6] On July 6, 2017, the respondent called 911 to report a person experiencing a drug overdose in his building. When police arrived, they observed a woman lying on the lobby floor who was being treated by paramedics. The respondent was nearby. When asked, he stated he lived in unit 812. A brief investigation revealed he lived in unit 810. Members of the Toronto Police Service entered his unit to check for other overdose victims and found substances they suspected were drugs. Officers obtained a search warrant and seized 2.029 kilograms of fentanyl from the unit. The respondent was arrested and charged with possession of fentanyl for the purpose of trafficking.

[7] A preliminary inquiry was held on June 29 and July 23, 2018. The respondent was committed to stand trial in the Superior Court of Justice and the trial was scheduled for September and October 2019. However, he re-elected for trial by judge alone to secure earlier trial dates commencing April 8, 2019 (the “first trial date”).

[8] On April 3, 2019, defence counsel sought an adjournment to bring an application under s. 7 of the Charter based on fresh evidence. An adjournment was granted, a judicial pre-trial was scheduled, and the trial was eventually rescheduled for three weeks beginning September 14, 2020 (the “second trial date”). The defence acknowledged that it was responsible for the delay and waived delay from the first trial date to the second trial date.

[9] The Jordan threshold of 30 months was crossed on January 6, 2020. At appearances on January 6, 8, and 13, 2020, defence counsel sought earlier trial dates. These attempts were unsuccessful and on January 17, 2020, trial dates beginning September 14, 2020, were confirmed.

[10] On September 11, 2020, the Crown brought an application to adjourn the trial because a key police witness, Police Constable Bradley, was unable to testify as he was on medical leave. Crown counsel stated this caught everyone off guard and that the respondent was consenting “out of necessity” given the importance of the witness to the case. The respondent alleged PC Bradley had taken money belonging to him during the search of the apartment and he was therefore a crucial witness for the s. 7 application. The Crown consented to the respondent’s release to house arrest. The trial was rescheduled for a third time, to May 17, 2021 (the “third trial date”). The respondent was then incarcerated on new charges under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, on January 15, 2021.

[11] At an appearance on March 20, 2021, Crown counsel confirmed PC Bradley could testify at the upcoming trial. However, on May 11, 2021, the Toronto Police Medical Advisory Services advised Crown counsel that PC Bradley had suffered a setback and could not testify. At a court appearance the next day, the Crown and defence counsel agreed there was no option but to adjourn the trial again. The trial was rescheduled for a fourth time to June 6, 2022 (the “fourth trial date”).

[12] On March 22, 2022, the respondent brought an application to have the charge against him stayed because his s. 11(b) right to trial within a reasonable time had been breached.

III. DECISION BELOW

[13] The application judge began her Jordan analysis by determining that the total delay from the charge to the anticipated end of trial was 59.5 months, and then subtracting 18.5 months of delay attributed to the defence, yielding a net delay of 41 months. She then attributed 21 months of delay to the exceptional circumstance of PC Bradley’s illness, resulting in a remaining delay of 20 months. The application judge noted that the illness caused the trial to be rescheduled in September 2020 and again following a relapse in May 2021. However, she concluded that PC Bradley’s illness was unavoidable, unforeseeable, and beyond the control of the Crown. She also found that the Crown could not readily mitigate the delay caused by the illness.

[14] The narrow issue for the application judge to decide was whether the respondent had shown that the remaining delay of 20 months was unreasonable despite falling below the presumptive ceiling of 30 months for cases in the superior courts. She correctly observed that the respondent was required to show: (1) he took meaningful steps that demonstrated a sustained effort to expedite proceedings; and (2) the case took markedly longer than it reasonably should have.

[15] Before the application judge, Crown counsel did not dispute that the respondent took reasonable steps to move the case along. The application judge reviewed the steps the respondent took, including re-electing for a judge-alone trial to secure earlier trial dates and repeatedly seeking earlier dates in 2019 and 2020. She concluded the respondent took meaningful steps demonstrating a sustained effort to expedite the proceedings.

[16] The application judge then turned to the question of whether the case took markedly longer than it reasonably should have. In assessing this question, she determined that she should consider the total delay of the entire proceeding, and not exclusively the remaining delay, based on her interpretation of the direction in Jordan to “step back from the minutiae and adopt a bird’s-eye view of the case” to determine whether “the case took markedly longer than it reasonably should have”: paras. 82, 91, 111.

[17] The application judge also considered the following factors: the complexity of the case, local considerations, and steps taken by the Crown to expedite proceedings. She found it was only sensible to apply these factors to the total delay, rather than the remaining delay. The application judge noted that if exceptional circumstances were excluded entirely from the analysis at this stage, a stay for unreasonable delay could not follow despite any number of years or decades of delay due to illness of a key witness. The application judge found this approach “would remove prejudice from the equation” and concluded it “cannot be right.”

[18] The application judge determined that the case was of modest complexity, and that local circumstances and the steps taken by the Crown did not contribute to the case taking markedly longer than it should have. She nevertheless found that “[t]he delay that tips this case from somewhat delayed to markedly delayed is the added 21 months due to the illness of the critical witness”.

[19] Having found that the respondent had taken meaningful and sustained steps, and that the case took markedly longer than it should have, the application judge concluded that this was one of the “rare cases” in which a below-ceiling delay was unreasonable. Accordingly, she directed a stay of the charge against the respondent.

IV. POSITIONS OF THE PARTIES

[20] As noted above, the Crown’s primary ground of appeal is that the application judge erroneously applied the Jordan framework by considering the delay attributed to exceptional circumstances in her analysis of whether the case took markedly longer than it reasonably should have.

[21] The respondent’s argument has two branches. Under the first branch, he argues that the application judge properly considered the illness of the officer and the delay that flowed from it as a “case-specific factor” when assessing whether the case took markedly longer than it should have. The second branch of the respondent’s argument is that, if the application judge erred, she did so in favour of the appellant. This is because the application judge improperly characterized delay caused by PC Bradley’s illness as an exceptional circumstance in the absence of evidence to support both that the illness was unforeseeable and that the Crown took steps to mitigate delay once it arose. In the respondent’s submission, the application judge should have subtracted less than the entire 21-month period in the absence of this evidence, resulting in a remaining delay above the Jordan ceiling.

V. ANALYSIS

(a) Foundational Principles

[22] The framework for assessing unreasonable delay post-Jordan is well-established. It was first summarized by this court in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40:

A. The New Framework Summarized

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [Emphasis in original.]

[23] The standard of review is also uncontroversial. Although the application judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error, her characterization of periods of delay and the ultimate conclusion as to 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.

(b) The Application Judge Erred in Assessing the Entire Proceedings Rather than the Remaining Delay

[24] The application judge accepted the defence submission that “step[ping] back from the minutiae and adopt[ing] a bird’s-eye view” required her to look at the entire proceedings in assessing whether the case took markedly longer than it should have. The application judge stated:

I agree with the Applicant. The reasonableness of the net delay is determined with reference to two very specific factors, the second of which is “that the case took markedly longer than it reasonably should have” (emphasis added): Jordan, at para 82. A plain reading of the second part of the test for cases that fall under the presumptive ceiling is that the judge at first instance should look “at the case” as a whole and not just the “net delay”. [Emphasis added.]

[25] The application judge reached this conclusion in part based on a hypothetical scenario:

[U]nder the interpretation proposed by Crown counsel, in a case such as this no period of delay related to exceptional circumstances would ever yield a stay for unreasonable delay. Any number of years of delay due to the illness of a critical witness would be subtracted from total delay and removed from consideration on the question of whether the case took markedly longer than it should have. In such circumstances, so long as the net delay was comparable to the time it took similar cases to proceed to trial, the delay would not be unreasonable. That would lead to absurd results and would completely ignore the fact that the accused’s liberty could be restricted for years or even decades in such circumstances. It would remove prejudice from the equation. This cannot be right. [Emphasis in original.]

[26] Respectfully, these passages demonstrate that the application judge misapplied the Jordan framework when assessing whether this case took markedly longer than it should have. I say this for the following reasons.

[27] First, the application judge’s interpretation that the entire proceedings must be considered to assess whether below-ceiling delay is unreasonable finds no support on a plain reading of Jordan. At para. 82, the majority judgment provided the following guidance:

A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. [Emphasis added.]

[28] As the above noted passage states, it is the remaining delay left after deducting “defence delay” and delay attributable to “exceptional circumstances” that must be considered at this stage of the analysis: see also Coulter, at paras. 106-7. There is nothing in the Jordan framework suggesting that delay that has already been accounted for and deducted from the total delay can be reconsidered in determining whether a case took markedly longer than it should have.

[29] Nor do I accept the application judge’s view that the direction by the majority in Jordan for judges to take a “bird’s-eye view” of the case permits a reconsideration of the entire proceeding at this stage of the analysis. Rather, Jordan urges judges to approach the reasonableness of delay in a qualitative manner and not by way of mechanical calculations. At para. 91, the majority stated:

Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since R. v. Morin, [1992] 1 S.C.R. 711, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92). [Emphasis added.]

[30] Contrary to the application judge’s interpretation, the references to “the time the case has taken” in the above noted passage do not invite an examination of the entire proceedings and a reconsideration of delay that has already been deducted. The references to “the case” in this passage must be read together with earlier passages of the decision that make it clear that the delay being examined at this stage is the below-ceiling remaining delay.

[31] Second, the application judge’s approach undermines altogether her earlier finding that the Crown satisfied its onus in demonstrating that the periods of delay flowing from PC Bradley’s illness were attributable to exceptional circumstances. Once that period of delay qualified as an exceptional circumstance, Jordan required the application judge to subtract the delay: see para. 75. The delay could not subsequently be used to underpin a finding that the charges should be stayed because that delay caused the case to take markedly longer than it should have. With respect, such findings are internally inconsistent.

[32] Third, in relying on a hypothetical scenario, the application judge departed from the “case-specific” analysis that is required to determine whether remaining delay below the presumptive ceiling is unreasonable: Jordan, at paras. 51; 87-91. Jordan directs the judge to consider case-specific factors, including: the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite proceedings: at para. 87. By relying on a hypothetical scenario, the application judge’s analysis strayed from the fact-specific to engage with a situation that was not before her.

[33] Moreover, the application judge’s hypothetical scenario of an individual whose trial is delayed for years or decades due to illness of a key witness is far-fetched because it overlooks that at a certain point, a judge would have to seriously consider whether to agree to further adjournment requests. In my view, a scenario where a judge would continually adjourn a matter for years or decades because of an ill witness is implausible as it ignores the request by the majority in Jordan that trial judges do their part to ensure speedier trials: Jordan, at para. 116.

[34] The scenario also assumes that “[a]ny number of years of delay due to the illness of a critical witness would be subtracted from total delay” as an exceptional circumstance. In my view, this ignores the Crown’s burden to show that delay flowing from an illness qualifies as an exceptional circumstance. Jordan directs that an exceptional circumstance must lie beyond the Crown’s control as either “reasonably unforeseen” or “reasonably unavoidable”: at para. 69. The Crown must also show that it cannot reasonably remedy the delays emanating from these circumstances once they arise: Jordan, at para. 69. In the application judge’s hypothetical, at a certain point, the Crown will likely struggle to demonstrate that it could not reasonably mitigate delay emanating from these circumstances. In the scenario of an intermittently ill key witness, the Crown can potentially remedy the absence of that witness by: applying to introduce preliminary hearing transcripts of their evidence under s. 715 of the Criminal Code; offering to schedule out-of-court examinations of that witness when they are in good health; or applying to introduce a statement of that witness under the principled exception to the hearsay rule. Accordingly, if the Crown fails to be proactive in addressing repeated delay caused by illness of a key witness, it is certainly open to an application judge to find that delay is not attributable to an exceptional circumstance. This would be the proper approach, rather than attributing the delay flowing from the illness to an exceptional circumstance, deducting it, and yet factoring it into the analysis of whether the case took markedly longer than it reasonably should have.

(c) The Application Judge Did Not Err in Finding Exceptional Circumstances

[35] The respondent submits that even if the application judge erred in her approach to whether the case took markedly longer than it reasonably should have, this court should dismiss the appeal because the application judge erred in treating the entire delay caused by PC Bradley’s illness as an exceptional circumstance. The respondent argues that the application judge should not have attributed 21 months of delay to an exceptional circumstance in the absence of evidence demonstrating when the illness arose, when the Crown first learned of it, and what the Crown did to attempt to mitigate delay in response. Counsel submits that if the application judge had apportioned even half the delay to this exceptional circumstance, remaining delay would have been above the ceiling and subject to an entirely different presumption and analysis.

[36] I do not accept counsel’s submission. On the record, the application judge’s conclusion is unassailable. Before her, the parties agreed that the delay between the second and third trial dates was due to an exceptional circumstance. The application judge concluded that the defence was not able to articulate a reason to treat the delay between the third and fourth trial dates differently. Moreover, the application judge observed that Jordan explicitly identifies medical emergencies experienced by key witnesses as potentially leading to exceptional circumstances: at para. 72. After carefully considering the circumstances of PC Bradley’s illness, the application judge concluded that the illness was an unforeseen, unavoidable event beyond the control of the Crown, and that the Crown could not readily mitigate the delay. It follows that the application judge properly subtracted 21 months’ delay for exceptional circumstances and approached this matter as a “below the ceiling” case.

(d) Conclusion

[37] The application judge improperly considered the delay that flowed from PC Bradley’s illness in concluding that delay in this case was unreasonable. When the analysis is properly focussed on the 20-month remaining delay, nothing in the record suggests that this case took markedly longer than it reasonably should have. The application judge noted that “the delay that tips this case from somewhat delayed to markedly delayed” was the delay that flowed from PC Bradley’s illness. It is clear from the application judge’s reasons that if she did not reconsider this 21-month delay in her final analysis, she would not have concluded that the case took markedly longer than it reasonably should have, and she would not have granted a stay. In my view, when the Jordan framework is properly applied, the remaining delay is not unreasonable and the respondent’s s. 11(b) right is not infringed. Given my conclusion on this ground of appeal, it is not necessary to deal with the Crown’s other grounds of appeal.