WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022 11 14 COURT FILE No.: Halton Info # 21- 939

B E T W E E N :

HIS MAJESTY THE KING

— AND —

ROBERT SCOTT MUSSON

Before: Justice Jennifer Campitelli Heard on: November 2, 2022 Reasons for Judgment released on: November 14, 2022

Counsel: Harutyun Apel ...................................................................................... counsel for the Crown Andrew Matheson and Natalie Kolos ..... counsel for the accused Robert S. Musson

CAMPITELLI J.:

[1] Dr. Musson faces four counts on the information, which is before the court. That he:

(1) Between the 1st day of January in the year 1997 and the 31st of December in the year 1998, both dates inclusive, at the City of Burlington in the said Region, did commit a sexual assault on A.L., contrary to section 271 of the Criminal Code of Canada; and

(2) Between the 1st day of January in the year 1997 and the 31st day of December in the year 1998, both dates inclusive, at the city of Burlington in the said Region, did for a sexual purpose touch A.L., a person under the age of sixteen years directly (or indirectly) with a part of his body, to wit: hands, contrary to section 151 of the Criminal Code of Canada; and

(3) Between the 1st day of January in the year 1997 and the 31st day of December in the year 1998, both dates inclusive, at the city of Burlington in the said Region, did commit a sexual assault on A.L. contrary to section 271 of the Criminal Code of Canada; and

(4) Between the 1st day of January in the year 1997 and the 31st day of December in the year 1998, both dates inclusive, at the City of Burlington in the said Region, did for a sexual purpose touch A.L., a person under the age of sixteen years directly (or indirectly) with a part of his body, to wit: hands, contrary to section 151 of the Criminal Code of Canada.

[2] Dr. Musson has brought an application, claiming that his rights as protected by section 11(b) of the Canadian Charter of Rights and Freedoms have been violated in that he has not been provided with a trial within a reasonable time. Dr. Musson asks me to stay these proceedings as a result.

[3] Out of necessity, this application was argued less than four weeks prior to the first scheduled day of trial. There are two rulings I reserved on, pending the outcome of this application. One of those rulings was promised to counsel for Dr. Musson, should I dismiss his 11(b) application, two weeks prior to the first scheduled day of trial. Therefore, my ruling on this application was required very shortly after the matter was argued before me. This informs the brevity of my reasons.

The Legal Framework

[4] In R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 (SCC), the Supreme Court of Canada addressed the unduly complex nature of the Morin framework, highlighting that courts must avoid failing to see the “forest for the trees”: Jordan supra. at para. 37 (SCC) citing R. v. Godin [2009] S.C.R. 3 at para. 18 (SCC). The court also identified a “culture of complacency” towards delay, which had emerged within the criminal justice system: Jordan supra. at para. 40. The court found that the Morin framework did not address this “culture of complacency”, as delay was either condemned or rationalized at the “back end”, which did not encourage police, Crown counsel, defence counsel, courts, provincial legislatures and Parliament to address inefficient practices and resourcing problems: Jordan supra. at para. 41 (SCC).

[5] In response, the Supreme Court of Canada introduced a new 11(b) framework setting the presumptive “ceiling” in the Ontario Court of Justice at 18 months. If the total delay from laying the charges to the actual or anticipated end of the trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the onus falls to the crown to establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable, and a stay will follow: Jordan supra. at para. 46 and 47 (SCC).

[6] Defence delay has two components. First, is delay waived by the defence. Waiver can be either implicit or explicit; but it must be clear. The second component of defence delay is delay caused solely by the conduct of the defence. For example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. However, defence actions legitimately taken to respond to the charges fall outside of the ambit of defence delay. Defence must be allowed preparation time, even where the court and the Crown are ready to proceed: Jordan supra. at paras. 61, 63 and 64 (SCC).

[7] Exceptional circumstances are not rare or entirely uncommon. However, they lie outside of the Crown’s control in that, “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating for those circumstances once they arise”. The crown must show that it took reasonable and available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes, seeking assistance from the defence to streamline evidence or other appropriate procedural means. The Crown is not required to show that the steps it took were ultimately successful; rather, just that reasonable steps were taken in an attempt to avoid the delay: Jordan supra. at paras. 69-70 (SCC).

Analysis/Conclusion

Calculating the Total Delay

[8] The parties agree that the total delay between the time the charges were laid, and the estimated completion of Dr. Musson’s trial is 683 days. The parties also agree that the presumptive ceiling, calculated on this record, is 547.5 days. Therefore, the total delay exceeds the presumptive ceiling in the Ontario Court of Justice.

Calculating the Net Delay

[9] The net delay is calculated by subtracting any defence caused delay from the total delay. Defence delay is subtracted because “the defence should not be allowed to benefit from its own delay-causing conduct”: Jordan supra. at para. 60 (SCC).

Was there any delay waived by the defence either expressly or implicitly on this record?

[10] Neither party takes the position that there was any delay waived by the defence either expressly or implicitly on this record.

Is there any delay, which lies at the feet of the defence on this record?

[11] The crown argues that there are three discrete periods of defence-caused delay, which must be subtracted from the total delay on this record. The defence does not concede any of the proposed periods are properly classified as defence-caused delay.

The Defence is not available for a series of trial dates offered in October of 2021

[12] On October 20, 2021, the first trial scheduling call took place between the Crown, Defence and the Trial Coordinator, where numerous dates were selected. Looking at the dates scheduled, the estimated completion of Dr. Musson’s trial at that point in time was August 23, 2022. It appears earlier dates were offered, where the Crown and Court were available; however, Defence counsel was not. Those dates would have resulted in Dr. Musson’s trial being completed on May 31, 2022, which is just under three months prior to the August 23, 2022 date that was eventually set. These three months may have been relevant had the trial proceeded as scheduled. However, as a result of an issue, which arose with respect to disclosure of material protected by the Youth Criminal Justice Act, this matter went completely off-course on June 7, 2022. All remaining dates after June 7, 2022, including the scheduled trial dates, were absorbed to address motions associated with the Youth Criminal Justice Act Issue. As such, I find the unavailability of Defence counsel with respect to the earlier dates offered in October of 2021 is inconsequential on this record.

[13] The crown argued that perhaps had the matter proceeded to trial earlier, the Crown would have been alerted to its inadvertent disclosure of youth records in direct conflict with the Youth Criminal Justice Act. Essentially, since the error was discovered on the eve of trial in June of 2022, the Crown argued had the trial been scheduled to commence in April of 2022, the Crown’s error may have come to light two months earlier. I find that the analysis I am required to engage in is fact specific and contextual, but it ought not be hypothetical. It is not appropriate for me to speculate about whether an earlier trial date may have hypothetically “triggered” the crown to realize an error it had made nearly a year previous. I must deal with the facts as they are, rather than engaging in speculative reasoning with respect to what they could have been.

The Defence adjourns a Judicial Pre-Trial in September of 2021 to seek instructions

[14] With a view to the second period of alleged defence-caused delay, the crown argued in its written materials that when the Defence adjourned the first Judicial Pre-Trial scheduled to take place on September 23, 2021, that created a period of delay, which was caused solely by the defence. The crown took the position that both the Crown and the Court were prepared to proceed with the Judicial Pre-Trial on September 23, 2021; however, the Defence sought an adjournment. Ultimately, the Judicial Pre-Trial took place on October 14, 2021. In oral submissions, it became apparent that the Defence had received significant disclosure immediately prior to the September 23, 2021 Judicial Pre-Trial date. The Defence argued that disclosure was important, that it required review, and that due to the nature of what was disclosed, counsel had to obtain instructions from Dr. Musson. In short, the Defence took the position that it was allowed preparation time, even when the court and the Crown were in a position to proceed. I agree. In these specific circumstances and in light of the disclosure produced just prior to the Judicial Pre-Trial scheduled to commence on September 23, 2021, the Defence’s request for an adjournment was a legitimate step, and it did not result in any Defence-caused delay.

Records are received and possessed by the Defence in direct conflict with the Youth Criminal Justice Act

[15] Finally, the Crown submits that half of the period of delay (175 days), which was caused by disclosure of youth records in conflict with the Youth Criminal Justice Act, should be attributed to the Defence. Notwithstanding the Crown admits it “dropped the ball” when it initially disclosed youth records absent the appropriate and necessary applications, it further argues that the Defence had a responsibility to ensure it was lawfully in possession of the material. In essence, the Crown takes the position that the Defence should have been diligent and ensured they possessed the material lawfully. Moreover, the Crown submits that the Defence was required to bring applications related to their possible use of the youth records; therefore, any delay caused by the youth disclosure issue should be shared equally between the parties (87.5 days should rest at the feet of the Defence). Respectfully, I am not prepared to take that leap, nor do I think it is supported in the relevant caselaw. Counsel for the Crown, in their role as quasi- ministers of justice, are responsible for ensuring material they acquire and disseminate in the course of prosecuting criminal offences is lawfully obtained and possessed. Counsel for Dr. Musson received disclosure from the Crown, which included youth records. I am not prepared to find that the Defence had an obligation to ensure the Crown lawfully possessed the youth records they readily disclosed. It was reasonable for the Defence to rely on the state to act within the confines of any applicable legislation in fulfilling their disclosure obligations. The delay that was caused when the Crown discovered, on the eve of trial, that it had “dropped the ball” with respect to the youth records lies solely at the feet of the crown.

[16] In the result, I find there is no defence caused delay on this record. Therefore, the net delay is 683 days.

Are there any exceptional circumstances on this record?

The Crown adjourns a prior discreditable conduct motion date

[17] After the issue related to the unlawful disclosure of youth records was addressed and new trial dates were selected, the assigned Crown went on an unexpected leave of absence. The date initially set for the prior discreditable conduct application was rescheduled, which resulted in the second series of anticipated trial dates completing 11 days later than was projected. I find this 11 days of delay is properly characterized as an exceptional circumstance. The leave could not have been anticipated and the Crown responded proactively by bringing its adjournment application as soon as possible, and in advance of the scheduled motion date. New dates were promptly selected, which minimized the amount of delay caused by the adjournment requested. The Defence submits that the Crown should have re-assigned the matter to another Crown immediately and there was no need for the original motion date to be adjourned. Given the complexity of the application at issue and the nature of these allegations, I have concluded that it was reasonable for the Crown to seek an adjournment of the original motion date rather than re-assigning the matter at that point in time. Ultimately, the matter was re-assigned, and new dates were secured with minimal delay.

Youth records are disclosed in direct conflict with the Youth Criminal Justice Act

[18] On June 7, 2022 the Crown advised me that it had inadvertently violated the Youth Criminal Justice Act. Youth records had been disclosed absent the appropriate and necessary applications pursuant to the Youth Criminal Justice Act, and the disclosure provided to the Defence was saturated with this sensitive information. In all of the circumstances, I was left in a position where the only prudent course of action was to order the Defence to destroy the crown-produced disclosure in its entirety. This, on what was to be the first day of Dr. Musson’s trial. Numerous motions followed to address the records at issue and all remaining dates were absorbed, including the scheduled trial dates. When new trial dates were finally rescheduled, an additional 175 days of delay was incurred on this record.

[19] The Crown asks me to find that their violation of the Youth Criminal Justice Act on these facts was an exceptional circumstance. The Defence strongly opposes this characterization. In the result, I am not prepared to characterize the Crown’s unlawful disclosure of youth records protected by the Youth Criminal Justice Act as an exceptional circumstance. This problematic disclosure was neither unforeseen nor was it unavoidable. The crown unlawfully acquired the material, unlawfully possessed the material and then, unlawfully disclosed the material. Simply put, the crown controlled the process.

[20] Moreover, once this matter was thrown off-course on June 7, 2022, I find that the Crown did not act proactively to try and remedy the situation it had caused by its own error. The Defence, not the Crown, promptly brought the requisite applications. On these very specific facts, it must be remembered that neither party was lawfully in possession of the youth records at issue prior to June 7, 2022. We were managing the re-production of material the Crown had already unlawfully possessed and disclosed. I imagine the Crown initially acquired and disclosed the youth records as it had determined they were relevant to the prosecution on some level. However, once the Crown identified the scope of its error on the eve of trial, it seemingly passed the “dropped ball” to counsel for Dr. Musson to manage moving forward.

[21] Finally, on June 22, 2022, it became apparent that new trial dates were required. The Defence requested a gap between my ruling on the prior discreditable conduct application and the first scheduled day of trial. I ruled that gap would be four weeks. It was clear on June 22, 2022, that seven days of trial time were to be set with the trial coordinator following the September 16, 2022 date, which is when the prior discreditable conduct application was set to be argued. [1] 1 For reasons I still don’t entirely comprehend, new trial dates were not scheduled with the trial coordinator until August 30, 2022, which was over two months after it was clear they would be required.

[22] On my review, after the June 7, 2022 appearance, it was incumbent on the crown to take steps to address the delay caused by the youth records issue before the delay exceeded the ceiling. This would

[23] I pressed the Crown on whether it reviewed its trial lists, with a view to possibly prioritizing Dr. Musson’s matter. It does not appear that ever happened. However, before being able to prioritize Dr. Musson’s matter or resort to any other appropriate case management processes, the Crown first had to arrange a trial scheduling meeting with a view to scheduling new trial dates. I find the Crown waiting over two months after June 22, 2022 to secure new trial dates is very telling. It is certainly not consistent with addressing the delay caused by the youth records issue before the delay exceeded the ceiling.

[24] In the result, only 11 days of a delay is properly characterized as connected to an exceptional event. The delay in this matter exceeds the ceiling outlined in R. v. Jordan, and I find it was unreasonable on this record. Dr. Musson’s rights as protected by Section 11(b) of the Canadian Charter of Rights and Freedoms have been violated. All four counts he faces on the information before me are to be stayed.

Released: November 14, 2022 Justice Jennifer Campitelli

[1] Transcript of proceedings June 22, 2022. Page 22, lines 10-15. Volume 2, Tab S of Defence materials.