ONTARIO COURT OF JUSTICE DATE: 2023 01 26 COURT FILE No.: Sudbury 4011-99820-3639-00
BETWEEN:
HIS MAJESTY THE KING IN RIGHT OF ONTARIO (MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT)
— AND —
TAIGA BUILDING PRODUCTS LTD./PRODUITS DE BATIMENT TAIGA LTEE., ENVIROFOR PRESERVERS (ONTARIO) DIVISION
Before: Justice Leonard Kim
Heard on: October 17, 2022
Ruling on 11(b) Motion: January 26, 2023
Counsel: David McCaskill.................................................................................. counsel for the Crown Adrian Miedema/Claire Browne ………………………… counsel for the accused Taiga Building Products et al
KIM J.:
1: FACTUAL OVERVIEW
[1] Taiga Building Product Limited, is charged with the offence of Failing, as an employer, to ensure that the measures and procedures prescribed by section 45(a) of Ontario Regulation 851 were carried out in a workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1.
[2] The trial was heard over the course of 11 days between January 2022 to October 2022. The defence has brought an application alleging unreasonable delay pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms. The parties agree that the total delay is 23 months and 29 days from the time the Information was sworn to the time of the end of the trial. There is little dispute with respect to the events contained within the chronology included in the defendant’s factum in this application.
[3] What remains in dispute is the delay remaining after any deductions are accounted for in the form of defence delay or exceptional circumstances such as the discrete event of the Covid-19 pandemic. According to the defence, the remaining net delay is 22 months and 20 days. On the other hand, the Crown submits that after accounting for defence delay and the discrete event of the Covid-19 pandemic, the remaining delay is 16 months and 2 days, or alternatively, 17 months and 18 days.
2: LAW AND ANALYSIS
[4] The leading case on assessing unreasonable delay is the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27. The general legal framework from Jordan was succinctly summarized by the Ontario Court of Appeal in R. v. Coltour, 2016 ONCA 704, with the following description of the principles:
“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, para. 80).
Exceptional Circumstances
45 If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.
46 Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69)”
47 An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).
48 The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
(a) Discrete Events
49 An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).
50 The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).
(b) Particularly Complex Cases
51 Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified (Jordan, para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).
52 Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required (Jordan, para. 80).”
[5] In the case at bar, the Information was sworn on October 21, 2020. Disclosure was provided by the Crown to the defence on November 23, 2020, and the first court appearance was December 2, 2020. On that date, the defence requested an adjournment of 2½ months to February 17, 2021, to permit them an opportunity to review the disclosure in what they have described as a voluminous file. Upon returning on February 17, 2021, the defence sought a further 30-day adjournment to continue to review the disclosure bringing us to March 17, 2021.
[6] The Crown alleges defence delay from December 2, 2020, to March 17, 2021, which amounts to approximately 3½-months delay. However, during oral argument on this Charter Application, Mr. McCaskill, on behalf of the Crown, has withdrawn this position.
[7] The Crown recognizes that the applicant is expected to require some inherent time to review the disclosure, obtain instructions and prepare to proceed. This is consistent with paragraph 65 in the Jordan decision. While Mr. McCaskill indicates that the Crown no longer alleges that 3½ months of defence delay should be assigned at this stage, he maintains that some portion of that should be treated as such. The refined position of the Crown is that some time would have been necessarily inherent for the defence to review the file in preparation of proceeding but not as much as the defence has submitted. The Crown seeks to assign two months for the period between December 2020 and the middle of March 2021 as defence delay.
[8] Mr. Miedema, on behalf of the applicant, takes the position that this case includes voluminous disclosure and he takes me to various passages of the transcripts where both the Crown and the defence seem to imply that the disclosure is significant. The voluminous nature of the disclosure is relevant at this juncture of the 11(b) analysis because from the defence perspective, it would be unrealistic to be able to proceed to the next stage after receiving such voluminous disclosure only after nine days prior to the first court appearance of December 2, 2020. The volume of disclosure is also important because the defence are relying on this fact to justify the 3½ month period from December 2, 2020 to March 17, 2020 as part of the total delay as opposed to delay attributed to the defence.
[9] Defence delay was explained by the Supreme Court of Canada in Jordan at paragraph 65, “…defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time even where the court and the Crown are ready to proceed.”
[10] Also, this principle was re-affirmed by the Ontario Court of Appeal in R. v. Malozzi, 2018 ONCA 312 at para. 3:
“Defence delay is defined in Jordan as including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 55. Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay.”
[11] While the charge was laid on October 21, 2020, the disclosure was not provided to the defence until November 23, 2020. Prior to this date, the defence had no ability to review the evidence and make decisions on behalf of their client. Due to the serious nature of the offence, the loss of human life, the various legal considerations and what is repeatedly referred to as voluminous disclosure in the transcripts, it is clear to me that this was a case that was going to require more time for counsel on behalf of the defendant to review at the outset of these proceedings.
[12] Accordingly, I do not accept that this 3½ month period should be treated as defence delay. When I consider that disclosure was provided to the defence on November 23, 2020, and the subsequent period from December 2, 2020 to March 17, 2021, the intervening Christmas holiday break and the voluminous disclosure in this case, the time period is reasonable and an inherent part of the intake process. It shall be included in the total delay calculation.
[13] The time period from November 26, 2021, to December 20, 2021, will be deemed as defence delay. This is because when these trial dates were initially set, earlier trial dates of November 25 and November 26, 2021, were offered to the parties. The Crown was available on both dates but the defence was not available on November 26. For reasons unknown to the Crown and the Court, the date available to defence counsel, namely, November 25, was not secured as a trial date. I agree with the Crown that given this availability, the trial could have started on November 25, 2021. However, because the defence was available that day, but unavailable November 26, the period of defence delay would be as of November 26, not the 25. Accordingly, 24 days of defence delay shall be allotted from November 26, 2021 to December 20, 2021 and subtracted from the total delay.
[14] For the purposes of this delay application, when it comes to the impact of the Covid-19 pandemic, the Crown submits that the entire period from the closure of the Ontario Court of Justice to the end of this trial should be attributed to that exceptional circumstance as a discrete event. Alternatively, the Crown submits that the pandemic was a discrete event resulting in a deduction of at least 5 months and 16 days (from May 3 to October 19, 2022). This would result in remaining delay of 16 months and 2 days. I respectfully reject these lines of reasoning.
[15] Mr. McCaskill further advances that because the defence were unavailable to start this trial 25 days sooner on November 25, 2021, this caused a cascading effect of further delay because of the loss of December 20 and 21 due to need to transition from an in-person trial to a virtual trial. He submits that this is not a complex trial to begin with and that had the defence been available to start the trial on November 25 and 26, the parties would have been two days into the trial evidence and more capable of transitioning to a virtual trial on the first trial dates of December 20 and 21, 2021.
[16] With respect, I do not accept this argument. The procedural explanations offered by Mr. McCaskill does not exist on the evidentiary record before me. The Crown did not file an affidavit in response to this 11(b) Charter application and invites the Court to make several assumptions to support their legal position. For example, I am being asked to accept that a transition from an in-person trial in November to a virtual trial in December would have minimized the total delay. This requires me to assume that the transition from an in-person trial to a virtual trial would have required time to adjust to begin with and that this amount of time was different than what was actually required.
[17] It would be an error of law for me to speculate on any residual impact that starting this trial 24 to 25 days sooner in November would have had on the total delay due to logistical transitions from in person to virtual format. I decline to engage in such an exercise in light of the significant evidentiary gap and equally possible alternative inferences that might have existed.
[18] Furthermore, the evidence strongly suggests that transitioning from an in-person trial to remote proceedings, should not have come as a surprise to either party. In other words, the evidence points to as early as May 2021 that the prospect of an in-person or virtual trial was a logistical consideration that the Crown and defence were told by the Ontario Court of Justice to expect as a possibility.
[19] On June 2, 2021, an agent for the Crown, Mr. S. Roy, and Mr. Miedema, appeared in the Ontario Court of Justice and scheduled the initial trial date. The transcript reveals that the possibility of an in-person trial transitioning to virtual format was on the minds of both parties at the time these dates were set:
“MR. ROY: And – and this is an in-person trial, however, we were told that should circumstances change, we... THE COURT: Yes. MR. ROY: ... can proceed remotely if... THE COURT: Okay. MR. ROY: ... if - if required, so that - that's another... And then the - the confirmation hearing, as your honour had - had noted, is the 12th of October...”
[20] Additionally, the transcript of the Trial Confirmation hearing before Madame Justice L. Serre on December 13, 2021, illustrates that Her Honour alerted both counsel of the possibility of a hybrid trial to commence. During that court appearance, it appears clear that it was equally possible that the trial could commence on December 20 and 21, 2021, both in-person and virtually.
[21] This expectation for counsel to be prepared to proceed either in person or virtually is consistent with the instructions of the pre-trial judge in May 2021, as well as the understanding of both litigants in court when the trial dates were set in June 2021. It should not have come as a surprise to anyone on the first day of trial that a virtual trial, or any portion of a virtual trial, was a logistical possibility to anticipate in the context of the pandemic.
[22] I am also mindful of the letter dated December 15, 2021, from the Regional Senior Justice for the North East Region, Madame Justice K. L. Lische, who made it clear in writing that counsel should be prepared to commence this trial on December 20, 2021, either in person or remotely. In Her Honour's letter to both counsel, she explicitly made reference to her judicial pretrial notes from May 2021, indicating that this matter could proceed either remotely, hybrid or in person: (See exhibit “P” to the affidavit of Claire Brown).
[23] I am not prepared to accept that because the defence were not prepared to start this trial on November 26, 2021, a cascading effect of additional delay beyond the 24 days of defence delay resulted because of the simple logistical shift from an in-person trial to a virtual trial.
[24] The Court does not deny the existence of the pandemic or the onset of the Omicron variant in the District of Sudbury in December 2021. However, the impact on court proceedings was not identical across the province and varied region by region. The cases relied on by the Crown were sourced from the Greater Toronto Area and some of them were pronouncements in the context of jury trials. In this case, on the evidentiary record before me in the Ontario Court of Justice in Sudbury, the impact of the pandemic did not span the totality of these proceedings as the Crown submits.
[25] When it comes to the effect of the pandemic, I agree with Justice P Monahan in R. v. Greenidge, 2021 ONCJ 57, in that there must be a causal connection with the delay and the onset of the pandemic.
[26] At paragraph 26 of Greenidge, Justice Monahan states the following:
“…in my view, the crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic. The Supreme Court in Jordan at paragraph 75 said that “the period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. (my emphasis)”
[27] This is sound reasoning based upon first principles of evidence law and the judicial treatment of a discrete event as explained by the Supreme Court at paragraph 75 in Jordan.
[28] This is an important consideration because in that same paragraph in Jordan, the Supreme Court indicates that if a discrete event could have been mitigated, it should not be subtracted from the total delay.
[29] I am prepared to give the benefit of the doubt by treating the adjournment jointly requested that I granted on December 20, 2021, as an exceptional circumstance in the form of a discrete event due to the Omicron variant spreading through Sudbury.
[30] The initial trial dates were December 20 and 21, 2021, and January 5, 6, 7, and 27, 2022 for a total of six (6) days. When the parties attended the confirmation hearing on October 12, 2021, they were advised by the trial coordinator that January 27, 2022, was not booked.
[31] On the first day of trial, December 20, 2021, both parties jointly requested an adjournment due to the rising numbers of the Omicron variant of the Covid-19 virus in the Sudbury District. The expected surge in the infection rates and imminent spread of this new variant in our local community is well documented.
[32] Presented with a joint request by counsel to adjourn the trial from that date to January 5, 2022, counsel expressed before me the logistical preparation required to transition from what they expected to be an in-person trial to a virtual proceeding. Their concerns due to the public health precautions implemented and lack of ability to proceed virtually that day led me to conclude that this adjournment request was required, and I granted their request. The net impact of this joint request for the adjournment granted meant that the initial trial conclusion date of March 11, 2022, was extended to April 19, 2022, an additional 39 days. This is an exceptional circumstance and shall be treated as a discrete event amounting to 39 days to be deducted from the Net Delay.
[33] The trial started on January 5, 2002, and the Crown called an inspector from the Ministry of Labour as their first witness. On January 6, the Crown called their second witness, Mr. Chris Mercer and then requested an adjournment at 3:00 p.m., although the Court and the defence were prepared to sit later into the afternoon.
[34] On the third day of trial, January 7, the Crown commenced a Mohan application to have Mr. Steve MacDonald qualified as an expert in the area of “line of sight, visibility, and human factors such as cognitive and visual factors”. Upon completion of the examination in chief, the defence cross examined Mr. MacDonald and it became apparent that he had prepared a draft report that was submitted for peer review to a Ministry colleague, Lisa Hooper. Although all draft reports were requested by the defence in November 2020, and the Crown had the Stinchcombe disclosure obligation to provide this, it was not provided to the defence until January 31, 2022 after Mr. MacDonald had testified in chief, midway through the Mohan voir dire.
[35] The defence also cross-examined Mr. MacDonald on what was evidently an expired International Standards Organization (“ISO”) standard utilized in his proposed expert report. Mr. MacDonald was not prepared to respond to this line of questioning, and he required some time to research whether his use of an expired ISO standard had any net effect on his conclusions and proposed expert opinion. Ultimately, after he had an opportunity to look into this further between the January and February court dates, he was able to advise the court that his opinion was not impacted by the expired ISO standard that he applied in his report.
[36] The fourth day of trial commenced on the afternoon of February 10, 2022. This half-day of court time permitted the cross examination of Mr. MacDonald to continue on the issues previously mentioned.
[37] The fifth day of trial was February 11, 2022. The Court was scheduled to sit for one-half day and counsel were ordered to present their respective outline of their submissions on the Mohan voir dire which were exchanged between counsel that same day. On this date, the court was expecting submissions to be completed. However, the Crown requested an adjournment in order to permit time to absorb the contents of the outline received from the defence that day. The adjournment request was not opposed by the defence and it was granted by the court with the added benefit of avoiding the interruption to the completion of the submissions on the Mohan voir dire that afternoon.
[38] It became evident that the outcome of the Mohan voir dire would impact the following factors that had the ability to directly impact the time required to complete this trial:
i) Whether the defence were going to attempt to qualify their own expert in response to the Crown expert, if so qualified; ii) The scope of Mr. MacDonald’s evidence that would be fact-based; iii) The scope of Mr. McDonald’s evidence that would be opinion-based, if any; iv) The admissibility of the animated video created and disclosed in October 2021; and v) How much time both parties felt would ultimately be required to complete the trial.
[39] Although earlier dates of February 28 and March 4, 2022, were offered by the trial coordinator to complete their submissions on the Mohan voir dire, the Crown was unavailable for both of those dates.
[40] The trial coordinator continued to make efforts to set continuation dates by email and offered May 2, 3, 4, 5 and 6, 2022, for trial continuation.
[41] The defence were available on May 2, 3, 5 and 6. The Crown was available for May 3, 4 and 6. As a result, the trial coordinator held May 3 and 6, 2022 and continued to canvas for a third trial continuation date.
[42] The submissions on the Mohan voir dire were delivered on April 19, 2022, which was the sixth day of trial. On this date, Mr. McCaskill, on behalf of the Crown, advised the Court that he was no longer available on May 6, 2022, and this date was vacated. As a result, after April 19, 2022, only May 3, 2022, was the confirmed date secured by the parties and the Court.
[43] After submissions on the Mohan voir dire were concluded on April 19, 2022, I reserved and delivered my decision on May 3, 2022. This was the seventh day of trial. I dismissed the Crown’s application to have Mr. MacDonald declared an expert in the area of “line of sight visibility and human factors such as cognitive and visual factors”. I concluded that his qualifications did not meet the criteria in White Burgess and Mohan and that the evidentiary foundation in support of the proposed opinion included many factual assumptions that I found to be unacceptable.
[44] The Crown’s Mohan application to have Mr. MacDonald qualified as an expert commenced mid-trial on January 7, 2022, and my ruling was delivered on May 3, 2022. This admissibility exercise required four trial dates and added a total of 116 days to these proceedings or 3 months, 26 days of additional delay.
[45] Subsequent to my ruling on the voir dire, the Crown and the defence agreed that four additional days for trial were required to complete this matter.
[46] The trial coordinator offered May 16, 2022, however, the Crown was unavailable.
[47] The dates of June 9, 20, 21 and 22, 2022, were then offered by the trial coordinator in an email dated May 17, 2022. The Crown indicated that he was available on June 9, 21 and 22, 2022. However, the defence were not available for any of these three dates in June offered by the court. Accordingly, a period of 56 days of defence delay shall be attributed from June 22, 2022, to August 17, 2022, due to defence counsel’s unavailability.
[48] Since the parties had agreed at the conclusion of the Mohan voir dire that four additional days for trial were required, even if the defence were available for the three dates in June, a fourth date was still needed to complete this trial.
[49] The trial coordinator then offered July 18 through to 29 and August 15 to the 19, 2022. The defence was available July 19, 20 and 22 and August 17, 18 and 19, 2022. The Crown was available July 14,15, 21, 22, 25 through to 29 and all of August except August 1 to the 5, 2022.
[50] The matter was spoken to on May 18, 2022, and the parties indicated to the court that four trial continuation dates were still being sought.
[51] Further dates were offered by the trial coordinator namely August 17, September 21, 22 and 23, 2022. The defence was available on each of those days but the Crown was only available on August 17, 2022.
[52] Since the objective here was to secure four additional days for trial, the first of those four additional days (August 17) was being held by the trial coordinator.
[53] In the meantime, the coordinator continued her efforts throughout the month of May to secure three additional trial days to complete this matter. She offered October 3, 4, 5, 6, 7, 13, 14, 17, 18, 19, and 20. The Crown was available October 13, 14, 17, 18, 19 and 20. The defence was available October 3, 4, 5, 6, 7 and 17, 2022.
[54] On June 20, 2022, the trial coordinator again offered counsel October 3, 4 and 5 2022 to complete this matter. The defence was available, however, the Crown was unavailable on these three days.
[55] On June 22, 2022, trial coordinator secured October 17, 18 and 19, 2022 as the remaining three dates to complete this trial. Those dates were confirmed on the record before me.
[56] On August 17, 2022, the court sat for the eighth day of trial. However, the Crown was not prepared to commence at the beginning of the court date because their witness, Mr. MacDonald, was not present in court as expected. This witness, although not qualified as an expert previously in these proceedings, was expected to be called by the Crown as a fact witness speaking to certain measurements taken at the scene. The Court took a break and permitted Mr. McCaskill an opportunity to contact Mr. MacDonald and ascertain where he was.
[57] Additionally, at the commencement of the proceedings on this day, without prior notice, Mr. McCaskill indicated to the Court that he was not available to sit past 2:00 p.m. because he was scheduled to attend an unrelated matter in Toronto before another court. It is important to note that the Court and the defence were prepared to sit this entire day, as scheduled, and that was the expectation when the date of August 17 was selected by all stakeholders.
[58] After a brief break, Mr. McCaskill advised the court that Mr. MacDonald was not able to attend court on this date as expected. Concerned about the waste of court resources, the Court explored other evidence that could be called to utilize the time we had reserved on August 17, 2022, with a view to move the matter forward. Counsel agreed to interrupt the Crown’s case and call a proposed defence expert, Mr. Wilkinson, as an expert in this case. Although I had ordered the Crown to file a response to the defence Mohan application, none was received. The remaining time in court on August 17 was utilized discussing the Crown’s position on the voir dire concerning the proposed defence expert, negotiating with the Crown the proper scope of expertise for the proposed defence expert as well as conducting the Mohan voir dire to qualify him as an expert. Court adjourned shortly after 1:00 p.m. on August 17 because Mr. McCaskill had to attend at another court at 2:00 p.m.
[59] October 17, 18 and 19, 2022, was utilized by hearing the arguments on the 11(b) Charter application as well as hearing from the remaining Crown witness, Mr. MacDonald, Mr. Wilkinson from the defence, and submissions from both parties. Those three days served as the nineth, tenth and eleventh day of trial in these proceedings.
[60] There is a total delay of 23 months and 29 days from the swearing of the Information on October 21, 2020, up to and including the final day of trial on October 19, 2022.
3: APPLICATION OF THE JORDAN PRINCIPLES
[61] Twenty-three (23) months and twenty-nine (29) days amounts to 729 days of total delay. The following overview is an application of the Jordan principles to this case:
Total Delay 729 days Defence Delay 24 days – from Nov. 26/21 to December 20/21 – defence unavailable Defence Delay 56 days – from June 22/22 to August 17/22 – defence unavailable Total Defence Delay 80 days Net Delay Total Delay (729) less Defence Delay (80) = Net Delay 649 days Exceptional Circumstances (Discrete Event - Covid) 39 days Net Delay (649) - Discrete Event Covid-19 (39 days) = Remaining Delay 610 days or 20.05 months
4. WAS THIS A PARTICULARLY COMPLEX CASE?
[62] The Jordan ceiling in this case is 18 months or 547 days. After accounting for the total defence delay and an exceptional circumstance that included a discrete event, the remaining delay of 610 days exceeds the presumptive Jordan ceiling significantly.
[63] The final question in the Jordan analysis is to ask myself whether this was a particularly complex case. I am to consider if the nature of the evidence and issues required an inordinate amount of trial or preparation time justifying the delay. In other words, as explained at paragraph 80 in Jordan, was this case particularly complex such that the time it has taken was justified and the delay reasonable?
[64] This was a tragic case that resulted in Mr. James Bolger losing his life because of a workplace accident involving a large piece of heavy machinery operated by his friend and co-worker, Mr. Chris Mercer. The disclosure was voluminous to review at the earlier stages of the court process. After the initial intake process, the case proceeded reasonably efficiently through the legal system. Upon review of the initial disclosure, the parties proceeded to set a judicial pre-trial and the matter moved forward to setting trial dates. There is no evidence before me of a causal link with the onset of the pandemic with any portion of delay other than the joint request to adjourn the first two days of trial in December 2021.
[65] After the Crown called two lay witnesses, the trial itself had to yield for the Crown’s application seeking to qualify Mr. MacDonald as an expert witness. Although the Crown made some indication that they would have agreed to a discovery process for their proposed expert prior to trial, ultimately, this did not materialize. We will not know with certainty if a pre-trial motion or discovery of Mr. MacDonald’s proposed expertise in advance of trial would have made a difference in the Court’s ultimate availability had the litigants chosen to proceed in that fashion several weeks or months prior to trial.
[66] Holding the admissibility voir dire with respect to Mr. MacDonald’s proposed opinion many weeks in advance of trial could have assisted all stakeholders in coming to a more accurate time estimate for the trial and with a better understanding of the strength of the Crown’s application to qualify him as an expert. The trial time estimates were grossly underestimated and in no way close to the scheduled six days agreed to after a judicial pre-trial prior to setting those dates. A difference of five days of trial is significant and speaks to the degree of reasonableness of trial time consumed in what is conceded to be a relatively uncomplicated case.
[67] Moreover, Mr. MacDonald’s proposed expert opinion included an animated video reconstructed from the CCTV data and other evidence available through the investigation. This was a video created by Mr. MacDonald that formed a part of his proposed opinion. At the conclusion of the Mohan voir dire and as we proceeded to closing submissions, the Crown came to the realization that the video animation portions of the voir dire evidence were not going to be relied on. Procedurally, the attempted introduction of this evidence was not without consequence in so far as court resources are concerned. The animated video formed a sub-element of Mr. MacDonald’s evidence in the Mohan voir dire that required closer examination in court. The recreated video also formed a part of the late disclosure provided to the defence approximately two months prior to the first scheduled trial date and therefore, was not considered when the parties first estimated the trial time required.
[68] Crown and defence counsel asked Mr. MacDonald questions regarding the video animation on the voir dire on January 7, 2022. The issue of admissibility was to be decided in this voir dire. As a result, counsel were ordered to file outlines of submissions regarding the admissibility of the video animation with the court by February 11, 2022. The realization that this evidence was of no utility to the prosecution came at the conclusion of the voir dire on April 19, 2022 and contributed to the inefficient use of court time in an otherwise, uncomplicated matter.
[69] Similarly, the realization that a draft report was submitted by Mr. MacDonald to his colleague for review and the fact that he had applied an expired ISO standard should have come to light sooner. The cumulative effect of each of these important facts summarized above should have been known to the Crown in advance of trial and shared with the defence with a view of maximizing on court resources at trial. Regrettably, they were not.
[70] Litigants are free to choose how they approach and present a case in court. In this case, the Crown made the tactical decision to attempt to qualify Mr. Steve MacDonald as an expert. Four days of trial were utilized and resulted in this court dismissing the application to have him qualified as an expert in “Line of Sight, visibility and human factors such as cognitive and visual factors”.
[71] During the trial, the Court heard from four witnesses. The Crown initially called two lay witnesses and attempted to qualify Mr. MacDonald as an expert. After the voir dire, he was permitted to testify as a third lay witness for the Crown speaking to brief facts. The defence called one expert witness after having him qualified through a voir dire in less than half a day.
[72] Ultimately, Mr. McCaskill for the Crown has submitted that this was not a complicated case which is consistent with the position advanced by Mr. Miedema for the defendant. The evidentiary record supports their assessments. While the initial disclosure was voluminous, the relevant and probative evidence required for me to adjudicate on the essential elements of the charge before the court were not particularly complex. As submitted by both lawyers, the Court agrees that this was not a particularly complex case.
[73] I have considered the totality of the evidence before me and the submissions from counsel both orally and in their filings. This trial should not have required 11 days of court time in the Ontario Court of Justice spanning a period of almost two years. The evidence does not support a finding that this case was particularly complex. The amount of time this case required to be heard cannot be justified on the basis of case complexity.
5: CONCLUSION
[74] The total delay is 729 days or 23 months and 29 days.
[75] The total defence delay is 80 days.
[76] There were exceptional circumstances in the form of a discrete event resulting in the trial commencement being adjourned causing an additional 39 days.
[77] After deducting the defence delay and the discrete event I am left with 610 days or 20.05 months of remaining delay.
[78] This is in excess of two months beyond the 18-month Jordan threshold in the Ontario Court of Justice even after I account for all available deductions.
[79] The amount of time taken to conclude this trial was unreasonable.
[80] The Court has no choice but to find on a balance of probabilities that the defendant’s right to trial within a reasonable time under section 11(b) of the Canadian Charter Rights and Freedoms has been breached. Regrettably, a stay of proceedings shall be entered pursuant to section 24(1) of the Canadian Charter Rights and Freedoms.
Released: January 26, 2023 Signed: Justice Leonard Kim