Court File and Parties
COURT FILE NO.: 21559/17 AP
DATE: 20180608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen in right of Ontario (Ministry of Labour) Appellant
– and –
Andrew Nugent, Richard Guillemette and Tyler Buckingham Respondents
COUNSEL:
Daniel Kleiman, for the Appellant
Lynda Morgan, Jeremy Warning, Richard Stephenson for the Respondents
HEARD: April 25, 2018
On appeal from the order of Justice G. R. Maille of the Ontario Court of Justice, staying the proceedings against the respondents, dated November 23, 2017.
Tremblay J.
Reasons for Judgment
Overview
Introduction
[1] On November 23, 2017, Justice G. R. Maille of the Ontario Court of Justice stayed all charges against the respondents on the basis that their right to be tried within a reasonable time guaranteed by section 11(b) of the Charter had been infringed. The respondents were all charged in a single information with two offences under the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (“OSHA”).
[2] This is an appeal from that decision.
Facts
[3] On June 5, 2015, a worker, Denis Millette, suffered fatal injuries from acute cyanide intoxication via skin absorption at the Detour Lake Mine, an open-pit gold mine located approximately 185 kilometres northeast of Cochrane, Ontario.
[4] The Detour Lake Mine is owned and operated by Detour Gold Corporation. The deceased worker and the respondents in this matter were all employees of Detour Gold Corporation.
[5] Following a lengthy investigation by the Ministry of Labour and the Ontario Provincial Police, charges were laid under both the OSHA and the Criminal Code.
Summary of the proceedings
[6] The respondents were charged on May 26, 2016, with the current offences.
[7] In the same Information, Detour Gold Corporation was charged with 15 offences under the OSHA.
[8] Arising from the same fatality, Michael Okrus, Detour Gold Corporation and the respondent, Andrew Nugent were also charged with criminal negligence causing death, contrary to the Criminal Code.
[9] The criminal charges were prosecuted by counsel from a local Crown Attorney’s office (“the Criminal Crown”), while the OSHA charges were prosecuted by counsel from the Ministry of Labour (“the MOL Crown” or “the Crown”).
[10] Disclosure was requested by the respondent, Tyler Buckingham, on June 15, 2016, by the respondent, Richard Guillemette, on June 21, 2016, and by the respondent, Andrew Nugent, on July 12, 2016.
[11] The first appearance on the charges before the court was on June 23, 2016. The MOL Crown requested that these charges be heard by a provincial court judge, pursuant to subsection 68(2) of the OSHA. These charges were adjourned to July 26, 2016, in the Ontario Court of Justice, a date on which the criminal charges were also scheduled. From that point until the criminal charges were resolved, the provincial offence charges followed the criminal charges.
[12] The Supreme Court of Canada released the Jordan decision on July 8, 2016.
[13] On July 26, 2016, the MOL Crown advised the court that he was contemplating a severance application with respect to two of the individuals on the OSHA Information. He also indicated that he would need to bring an application for directions from the court as between the Criminal Crown and his office as to which matters would proceed first and what would become of the other set of charges. Both sets of charges were adjourned to October 4, 2016.
[14] Disclosure was received by counsel for the respondents on August 12, 2016.
[15] On October 4, 2016, the Criminal Crown advised that there would be further disclosure to be provided on the criminal charges. He stated that the plan for the prosecution moving forward was hopefully to be in a position to set a date for a pre-trial at the next appearance. He also indicated that he and the MOL Crown agreed that it made sense to have all the matters dealt with together at that point.
[16] The MOL Crown confirmed his view that the charges should be kept together at least through the initial judicial pre-trial so that the logistics of the sequence of prosecutions and like matters could be sorted out. He agreed with the Criminal Crown that another adjournment was necessary in order to complete disclosure on the criminal charges.
[17] Both sets of charges were adjourned to November 1, 2016.
[18] On November 1, 2016, both sets of charges were adjourned to November 22, 2016, to schedule a judicial pre-trial.
[19] On November 22, 2016, a judicial pre-trial was scheduled for February 22, 2017, on both sets of charges, and all charges were adjourned to March 21, 2017. The judicial pre-trial was held as scheduled.
[20] On March 21, 2017, both sets of charges were adjourned to April 18, 2017, and a continuation of the judicial pre-trial was scheduled for March 23, 2017.
[21] A continuation of the judicial pre-trial was held on March 23, 2017, and April 11, 2017.
[22] On April 18, 2017, both sets of charges were adjourned to May 16, 2017, for further continuation of the judicial pre-trial, which was held on April 21, 2017.
[23] On May 16, 2017, both sets of charges were adjourned to June 9, 2017, in Timmins, to be addressed before the pre-trial judge.
[24] On June 2, 2017, the judicial pre-trial was continued by teleconference on both sets of charges.
[25] On June 9, 2017, the court was advised that the criminal charges were resolved. A trial was scheduled for the respondents on the charges before the court, commencing January 28, 2018, and ending February 23, 2018. A judicial pre-trial on these charges was scheduled for October 25, 2017. All charges were adjourned to August 30, 2017, for resolution of the criminal charges.
[26] On August 30, 2017, Detour Gold Corporation plead guilty to one of the criminal charges and was sentenced. All provincial offence charges against Detour Gold Corporation were withdrawn. The criminal charges against the respondent, Andrew Nugent, and against Michael Okros were also withdrawn. The section 11(b) application was scheduled for hearing on October 6, 2017.
The trial judge’s decision on the section 11(b) Charter application
[27] The trial judge started his decision by setting out the legal framework established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and summarized in R. v. Coulter, 2016 ONCA 704.
[28] After reviewing the background and chronology of the proceedings, the trial judge proceeded to calculate the total delay.
[29] In doing so, the trial judge included the period of deliberation of 2 months he anticipated would reasonably be required to deliver judgment, citing the decision of Justice Paccioco in R. v. J.M., 2017 ONCJ 4. He determined that the total delay was 23 months.
[30] The Crown did not allege any defence delay. The trial judge stated that the net delay was, therefore, the same as the total delay – 23 months – and presumptively unreasonable. The trial judge indicated that to rebut this presumption, the Crown must establish exceptional circumstances which justify the delay, failing which, the charges must be stayed.
[31] The Crown did not allege any discrete event, and the trial judge found that the remaining delay was the same at the net delay – 23 months.
[32] The Crown relied on the particularly complex case category.
[33] The trial judge found that the Crown had established that this was a particularly complex case.
[34] The trial judge noted that this did not end the matter. Referencing paragraph 79 of Jordan, the trial judge stated that the Crown has a duty to develop and follow a concrete plan to minimize the delay arising from the complexity. If it fails to do so, the Crown will be unable to establish exceptional circumstances because it will not be able to show that the circumstances were outside its control.
[35] The trial judge found that it was in the interest of justice for the Crown to proceed against multiple accused in this case and that it was reasonable not to sever the respondents.
[36] He also found that it was appropriate for the Crown to link this case with the parallel criminal prosecution initially.
[37] The trial judge took note of the following steps taken by the Crown:
- Voluminous disclosure was delivered promptly (within 2 months of the first disclosure request);
- That seamless substitution of one senior Crown for another in the face of a sudden unexpected absence, averting any potential delays;
- The early joining of the two sets of charges, streamlining the process and avoiding needless duplication of appearance;
- The Crown’s ready acceptance of any and all dates offered by the Court.
[38] The trial judge also took into account that the Crown made its request that these charges be heard by a provincial court judge on the first appearance, and ultimately withdrew all 15 charges against the co-accused, Detour Gold Corporation.
[39] The trial judge found that each of these steps were, in and of themselves, appropriate. However, he determined that, on the whole, the steps taken by the Crown were inadequate to meet the Crown’s duty to develop and follow a concrete plan to minimize delay as required by Jordan.
[40] The trial judge noted that while it was well within the Crown’s discretion to proceed with this case notwithstanding the resolution of all criminal charges, as it is not required to abandon meritorious cases as a matter of expediency, it had a positive duty to take reasonable steps in order to minimize delay.
[41] He also noted that the Crown’s appropriate participation in an extensive joint judicial pre-trial process was not incompatible with taking reasonable steps to minimize delay and move a case to trial under the presumptive ceiling. He stated that such steps could not be overlooked during resolution discussions.
[42] The trial judge was not satisfied that the Crown had taken reasonable steps to move the case to trial under the presumptive ceiling in the event it did not resolve.
[43] In reaching this conclusion, the trial judge found that it was unreasonable for the Crown not to seek a trial until about 5½ months before the presumptive ceiling was reached, leaving about a 2½ month window, including the summer months, in which to start this lengthy trial. This, in his view, made completion of the trial under presumptive ceiling highly unlikely, if not next to impossible.
[44] Furthermore, the trial judge relied on the fact that the record disclosed no effort by the Crown prior to June 9, 2017 to narrow issues or shorten the trial by seeking admissions, attempting to negotiate an agreed statement of facts, or seeking agreement regarding documents, despite being invited by the defence to do so.
[45] The trial judge concluded that the Crown’s approach to securing a trial date and to trial management fell well below the standard required under Jordan.
[46] The trial judge indicated that this was a transitional case, but that, as conceded by the Crown, the transitional exceptional circumstances could not justify the delay as the bulk of the history of this case occurred post-Jordan, and the parties did not rely on the previous state of the law in managing this case.
[47] The trial judge concluded that the delay was presumptively unreasonable and that the Crown had not rebutted this presumption. Accordingly, he found that the right of the respondents to be tried within a reasonable time had been infringed and stayed all charges against them.
Issues
[48] The issues in this appeal are as follows:
- Did the trial judge err by holding that the net delay to the end of the trial included a two month period of time anticipated for judicial deliberation after closing argument?
- Did the trial judge err in his evaluation of whether the Crown had developed and followed a concrete plan to minimize the delay caused by the complexity of this case before it reached the 18 month-ceiling?
Standard of Review of the Appellate Court
[49] On appeal, the standard of review on pure questions of law is that of correctness. The appellate court is free to replace the opinion of the trial judge with its own.
[50] Findings of fact, on the other hand, are entitled to great deference and only reviewable for palpable and overriding error by the trial judge. A palpable error is one that is obvious or “plainly seen”. An overriding error is one that goes to the very core of the outcome of the case.
[51] When a finding by a trial judge involves applying a legal standard to a set of facts, it is a question of mixed fact and law. Questions of mixed fact and law are reviewable only for palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law reviewable on a standard of correctness.
[52] In this case, the question as to whether the trial judge err by holding that the net delay to the end of the trial included a two month period of time anticipated for judicial deliberation after closing argument is a question of law.
[53] The question as to whether the trial judge erred in his evaluation of whether the Crown had developed and followed a concrete plan to minimize the delay caused by the complexity of this case before it reached the 18 month-ceiling is a question of mixed fact and law.
[54] Since the delay would exceed the 18-month presumptive ceiling even if I were to exclude the 2 month deliberation period from the calculation (23 months – 2 months = 21 months), the Crown would still have an obligation to develop and follow a concrete plan to minimize the delay. I will, for that reason, start my analysis with the latter issue.
Did the trial judge err in his evaluation of whether the Crown had developed and followed a concrete plan to minimize the delay caused by the complexity of this case before it reached the 18 month-ceiling?
The Position of the Parties
[55] The Crown argues that the trial judge erred in law by imposing too stringent a standard upon the Crown based on hindsight. It contends that the trial judge’s analysis demonstrates that, notwithstanding that the Crown managed the prosecution in a generally reasonable manner, the court was of the view that any particular flaw as perceived in hindsight was sufficient to deny the Crown the benefit of a modest expansion of the presumptive ceiling for a particularly complex case. The Crown specifically argues that the decision to not request that trial dates be set before the conclusion of resolution discussions held during the judicial pre-trials was a reasonable one and that the trial judge erred in deciding otherwise.
[56] The respondents are of the view that the trial judge properly considered all the relevant facts and circumstances established in the record relevant to whether the Crown developed and followed a concrete plan to minimize the delay arising from the complexity of the case. Ultimately, he determined that the Crown’s approach to securing a trial date and to trial management fell well below the Jordan standard. This determination is entitled to considerable deference on appeal and should be accepted, absent a demonstration of overriding and palpable error.
The Law
[57] The Supreme Court of Canada did not clearly articulate in Jordan the standard by which to evaluate whether the Crown has developed and followed a concrete plan to minimize the delay occasioned by the complexity of a prosecution.
[58] The comments by the Ontario Court of Appeal at paragraphs 47 and 48 in R. v. Saikaley 2017 ONCA 374, [2017] O.J. No. 2377 are of assistance in this regard:
47 Again, we do not read Jordan as requiring the Crown to take any and all steps proposed by the defence to expedite matters. The Crown's reasonable and principled position on the Dawson application provides no basis to conclude the Crown acted arbitrarily or in bad faith in refusing to consent to the cross-examination proposed by the defence. So long as the Crown acts reasonably and consistently with its duties, it would be unconscionable to deny it the benefit of the complex case exception to the 30-month presumptive ceiling.
48 In our view, the Crown did have a concrete plan to move this very complex case forward. Nothing in the Crown's conduct complained of exacerbated the delay. To the contrary, the Crown acted reasonably and took steps to reduce the delay, including severing charges, and withdrawing charges against the appellant's wife. Accordingly, in our view, although the net delay, in this case, exceeds the presumptive ceiling, we are satisfied that the case was particularly complex and that the delay was justified.
[59] In my view, Saikaley establishes that faced with a delay resulting from the complexity of a case, the Crown must act reasonably and take steps to implement the plan it has devised to minimize that delay.
[60] There are two additional cases that I find particularly useful in formulating the proper standard by which to evaluate whether the Crown has developed and followed a concrete plan to minimize the delay occasioned by the complexity of a prosecution.
[61] In R. v. Bulhosen [2016] O.J. No. 7137, Justice J.R. Henderson of this Court noted that the role of the court in a Jordan analysis is not to retroactively micromanage the Crown’s case. At paragraph 97, he summarized as follows the inquiry required of a judge hearing an 11(b) application: “So from a global perspective, did the Crown have a reasonable plan to manage the complexity of this case and did the Crown implement the plan in a reasonable way?”
[62] I agree with the test laid out by Justice Henderson in Bulhosen and adopt it.
[63] It is also the approach taken by Superior Court Justice S.S. Nakatsuru in R. v. Majeed 2017 ONSC 3554, [2017] O.J. No. 3011 in which he stated, at paragraph 52, the importance of not retroactively micromanaging the Crown’s plan to minimize the delay when assessing its reasonableness:
All of this means that a Crown is entitled to some latitude and flexibility in formulating a concrete plan to deal with the complexities of a case. It is far too easy to play Monday morning quarterback and criticize a plan because it fails to meet some opposing counsel’s standard of perfection based upon hindsight.
Analysis
Did the trial judge err in his interpretation of the standard applicable to the determination of whether the Crown had developed and followed a concrete plan to minimize delay?
[64] I find that the trial judge did not err in his interpretation of the principles applicable to the determination of whether the Crown had developed and followed a concrete plan to minimize delay. His reasons clearly indicate that he knew that the steps taken by the Crown were to be assessed on the standard of reasonableness and considered globally.
[65] More specifically, the trial judge referred to the necessity of the Crown taking reasonable steps at paragraphs 57, 58 and 59 of his decision. Meanwhile, the fact that he knew that he had to have a global perspective is clear from reading paragraph 56 of his decision, where he stated:
Each of these steps, were, in and of themselves, appropriate. However, on the whole, I find that the steps taken by the Crown, in this case, are inadequate to meet the Crown’s duty to develop and follow a concrete plan to minimize delay as required by Jordan. [Emphasis added]
Did the trial judge err by applying an evaluation standard that was too stringent to the facts of this case in determining whether the Crown had developed and followed a concrete plan to minimize delay?
Critical factual findings
[66] In evaluating whether the Crown had developed and followed a concrete plan to minimize delay, the trial judge reviewed exhaustively all the steps undertaken by the Crown from paragraph 45 to paragraph 73 of his decision.
[67] The two critical factual findings of the trial judge were: 1- that the Crown did not secure a trial date in a timely fashion, and 2- that its case management was problematic in that it did not take steps to streamline the evidence to be introduced at trial.
[68] These factual findings were amply supported by the evidentiary record. The record before the trial judge discloses, notably:
- That the Crown did not address the issue of securing trial dates until the June 9, 2017, court appearance (5 ½ months before the presumptive ceiling was reached) despite the possibility of setting a trial date being raised by the court more than once going back to November 22, 2016;
- That the Crown, further to the request of one of the respondents on May 25, 2017, provided a preliminary list of 32 witnesses on June 8, 2017. This rendered the June 9, 2017 pre-trial “not very productive” as “counsel had not had time to review and digest that list”;
- That the Crown had not responded to the other trial management issues raised by one of the respondents on May 25, 2017, as of September 18, 2017;
- That there was no effort by the Crown prior to June 9, 2017, to narrow issues or shorten the trial by seeking admissions, attempting to negotiate an agreed statement of facts, or seeking agreement regarding documents.
[69] The trial judge’s critical findings that the Crown did not secure trial dates in a timely fashion and that it did not take steps to streamline the evidence to be introduced at trial are entitled to great deference.
[70] The issue that I must now address is whether these critical factual findings allowed the trial judge to conclude, as he did, that the Crown did not take reasonable steps to move this case to trial under the presumptive ceiling.
Securing a trial date in a timely manner
[71] The question of whether the Crown should have taken the step of securing a trial date prior to the completion of the judicial pre-trial is an interesting one. There is certainly a valid argument to be made that setting trial dates for lengthy trials in a small jurisdiction “just in case” ongoing and productive resolution discussions are ultimately not successful could be problematic. Doing so may lead to the scheduling of trials based upon significantly inaccurate time estimates and collapsing trial lists as cases resolve.
[72] Conversely, however, Jordan may indeed require that trial dates be selected early in the process, and even prior to the completion of a judicial pre-trial, notwithstanding the potential scheduling problems such an approach may create. This was the view expressed by the trial judge in this case. In rejecting the Crown’s contention that it was not possible to schedule a trial date until resolution discussions were completed because they would not know how many accused and how many charges would be involved in the trial, the trial judge stated as follows at paragraph 68:
It was the Crown’s decision not to sever the co-accused. It chose to prosecute four accused together in a 21 count information. The Crown has a duty to develop and follow a plan to minimize delay arising from the case it chooses to prosecute. This includes seeking a trial date in a timely manner. Further, in a prosecution involving multiple accused on multiples charges, resolution of some charges against one or more accused can occur at any time prior to, or even during the trial. This possibility cannot justify the failure to seek a trial date within a reasonable time.
[73] The trial judge is assigned to preside in the Northeast Region of the province. It was the Ontario Court of Justice in that region that would have been required to accommodate this lengthy trial had it proceeded. As such, the trial judge’s view on the trial scheduling process to be adhered to in that region and his assessment of the reasonableness of the Crown’s approach to securing a trial date in this particular case are entitled to substantial deference.
[74] In my view, it was open to the trial judge to conclude that the Crown’s failure to secure a trial date in a timely manner was unreasonable and to consider that factor in his global evaluation. The fact that the respondents acquiesced to the Crown’s approach did not preclude the trial judge from reaching that conclusion since the obligation to develop and follow a concrete plan to minimize delay rests solely on the Crown.
The “problematic” case management
[75] Efforts by the Crown to narrow issues or shorten the trial by seeking admissions, attempting to negotiate an agreed statement of facts or seeking agreement regarding documents are important aspects of effective case management.
[76] In this case, the Crown’s failure to take action in relation to those particular aspects of case management was not limited to its failure to properly respond to defence’s letter of May 25, 2017. As duly noted by the trial judge, it extended to the whole period prior to June 9, 2017.
[77] I find that the Crown’s problematic case management was also properly considered by the trial judge in his assessment.
The standard of review applied by the trial judge
[78] In his decision, the trial judge imposed on the Crown that it be pro-active in its efforts to move the case to trial under the presumptive ceiling while simultaneously being involved in an extensive judicial pre-trial process aimed at resolving the case. This is not, in my view, too stringent a standard in the post-Jordan era. The trial judge, therefore, did not commit any error in law in his application of the evaluation standard.
[79] The trial judge’s critical findings of fact that the Crown failed to secure a trial date in a timely fashion and that it did not take steps to streamline the evidence to be introduced at trial are entitled to great deference. These findings could lead him to conclude, as he did, that the Crown did not take reasonable steps to minimize delay in this case and that its approach was well below the standard required by Jordan. I find that there was no palpable and overriding error on the trial judge’s part in reaching these conclusions based on those facts.
Conclusion
[80] In summary, the trial judge concluded that it was not reasonable for the Crown to take a passive approach and overlook steps to move the case to trial during resolution discussions. In my view, his reasons for coming to this conclusion were legally sound and well-anchored in the evidentiary record.
[81] I, therefore, see no basis for appellate interference with the trial judge’s decision holding that the Crown failed to develop and follow an adequate plan to minimize the delay arising from the complexity of the case. This conclusion was clearly open to the trial judge and led to his ultimate finding that the Crown had not established exceptional circumstances outside of its control justifying the delay above the presumptive ceiling.
[82] My conclusion on this issue disposes of this appeal, and it will not be necessary to determine whether the trial judge erred in law by holding that the net delay to the end of the trial included a two month period of time anticipated for judicial deliberation after closing argument.
Disposition
[83] The appeal is dismissed.
The Honourable Mr. Justice Robin Y. Tremblay
Released: June 8, 2018
COURT FILE NO.: 21559/17 AP
DATE: 20180608
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR)
– and –
ANDREW NUGENT, RICHARD GUILLEMETTE AND TYLER BUCKINGHAM
REASONS FOR JUDGMENT
The Honourable Mr. Justice Robin Y. Tremblay
Released: June 8, 2018