RULING ON THE APPLICATION TO STAY THE CHARGES PURSUANT TO S. 11(B) OF THE CHARTER OF RIGHTS AND FREEDOMS

COURT FILE NO.: CR-18-70000622 DATE: 20190429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MATTHEW MOREIRA AND PATRICK SMITH

COUNSEL: M. Cole, for the Crown J. Zita, for Mr. Moreira C. Morris, for Mr. Smith

HEARD: 8 April 2019

BEFORE: S.A.Q. Akhtar J.

Factual Background and Overview

Introduction

[1] On 6 December 2018, a jury found Matthew Moreira and Patrick Smith guilty of the offences of second degree murder and manslaughter of Zaher Noureddine and assault and robbery of Mitchell Conery. Immediately after the verdict, defence counsel informed the court of their intention to bring a motion to stay the indictment pursuant to s. 11(b) of the Charter of Rights and Freedoms. The case was adjourned at defence request so that they could order transcripts and prepare application materials.

[2] On 8 April 2019, the motion was fully argued. Shortly after hearing submissions, I informed all parties that the s. 11(b) application would be dismissed with reasons to follow. These are those reasons.

Factual Background

[3] Mitchell Conery and Zaher Noureddine worked together at Ovio, a third party, direct marketing company employing door-to-door sales personnel to sell goods on behalf of clients.

[4] On 29 December 2015, Mr. Conery and Mr. Noureddine had drinks with their boss, Jeff Moores, at the Little Sisters bar located at Yonge and Eglinton. They attended the bar to provide encouragement and support to Mr. Conery, who had become disillusioned and unhappy at work. Afterwards, Mr. Conery agreed to drive Mr. Noureddine home and the two walked to Mr. Conery’s car, which was parked on Lola Road, a sidestreet near the bar.

[5] As they did so, William Cummins, Patrick Smith, and Matthew Moreira emerged from an adjoining alleyway and moved in a diagonal direction towards the two men. Without warning, Mr. Cummins struck Mr. Conery on the back of his head, forcing him to the ground where he was stomped on.

[6] Mr. Noureddine was kicked and beaten around the head by Mr. Smith and Mr. Cummins. Witnesses testified that the force inflicted by the attackers was so severe that they feared Mr. Noureddine would die. One witness likened the blows to someone kicking a soccer ball down the length of a field.

[7] During the attack, Mr. Moreira approached Mr. Conery as he lay on the ground, and told him that if he handed over his wallet, the attack on Mr. Noureddine would end. Mr. Conery informed Mr. Moreira that he had no wallet before the three men ran from the scene.

[8] Mr. Noureddine lost consciousness and was rushed to hospital. He was pronounced dead on arrival. The forensic pathologist diagnosed the cause of death to be a fracture of the transverse process, a small bone situated to the right side of a bony structure at the back of the head. This bone contained an arterial route to the brain. As a result of the fracture, this artery was ruptured leaking blood and causing the brain to swell in the skull causing cardiac arrest and death.

[9] Mr. Cummins, Mr. Moreira, and Mr. Smith were identified as suspects. Accordingly, the police mounted a “Mr Big” operation as undercover officers sought to gain Mr. Smith’s trust and encourage him to provide information about Mr. Noureddine’s death.

[10] The operation yielded results. Mr. Smith admitted his involvement in the killing and, in addition, implicated Mr. Cummins. Mr. Smith’s statements, however, were ruled inadmissible at trial.

[11] On 12 September 2018, Mr. Cummins, Mr. Smith, and Mr. Moreira’s trial began before Forestell J. (“the first trial”). During the course of the Crown’s case, 58 video clips capturing the three accused on the night of the killing were played for the jury. On 15 October 2018, the Crown closed its case. However, on 18 October 2018, prior to the defence calling evidence, the Crown applied to re-open its case to play two videos it had omitted to play earlier.

[12] On 23 October 2018, Mr. Cummins testified. In cross-examination, the Crown confronted him with 11 short video clips not previously played during the Crown’s case. On 26 October 2018, all three accused applied for a mistrial claiming their right to a fair trial had been irredeemably prejudiced by the use of the 11 video clips to cross-examine Mr. Cummins. On 1 November 2018, Forestell J. granted the application and declared a mistrial. All parties attended before McMahon J. who set a new trial date of 8 November 2018 (“the second trial”).

[13] Just prior to the start of the second trial, Mr. Cummins parted company with his trial counsel but made it clear that he was not prepared to proceed to trial unrepresented. The Crown severed him from the indictment and proceeded separately against Mr. Moreira and Mr. Smith.

[14] On 6 December 2018, the jury delivered its verdict finding Mr. Smith guilty of the second degree murder of Mr. Noureddine and assault on Mr. Conery. Mr. Moreira was found guilty of the manslaughter of Mr. Noureddine and robbery of Mr. Conery.

The Chronological Timeline

[15] The timeline leading up to the end of the trial date unfolded as follows:

• 16 April 2016: Mr. Cummins and Mr. Smith are charged with second degree murder and robbery
• 19 April 2016: Mr. Moreira is charged with second degree murder and robbery
• 11 July 2016: Substantial disclosure provided to the defence
• 8 August 2016: Judicial pre-trial set for 1 September 2016
• 1 September 2016: Judicial pre-trial held with the matter adjourned to 12 September 2016
• 28 September 2016: Adjournment to 12 October 2016 for continuing judicial pre-trial
• 12 October 2016: Adjournment to 13 October 2016 for further judicial pre-trial
• 13 October 2016: Dates set for further judicial pre-trial (12 December 2016) and a five week preliminary inquiry beginning 1 August 2016.
• Further judicial pre-trials were scheduled for 12 December 2016 and 28 April 2017.
• 28 April 2017: Continuing judicial pre-trial held and focus hearing scheduled for 13 June 2017
• 13 June 2017: Focus hearing conducted before the preliminary inquiry judge, Wong J. The Crown sought leave to sever Mr. Smith from Mr. Cummins and Mr. Moreira and run two separate preliminary inquiries so that they might call Mr. Smith against the other accused. Wong J. denied the request.
• 19 July 2017: Continued Focus Hearing held before Wong J. - the Crown indicated that it had sought approval to prefer a direct indictment
• 1 August 2017: The preliminary inquiry commenced
• 31 August 2017: All three accused committed for trial for first degree murder to the Superior Court of Justice
• 8 September 2017: The accused made their first appearance in front of McMahon J. in the Superior Court. A judicial pre-trial was set for 12 October 2017 along with the date for an eight week trial to begin on 10 September 2018
• 10 September 2018: The trial commenced in front of Forestell J. with a series of pre-trial motions including the admissibility of Mr. Smith’s utterances pursuant to the “Mr. Big” investigation and Mr. Moreira’s statement to undercover officers; a Charter application was also commenced to exclude evidence found at Mr. Moreira’s girlfriend’s residence
• 26 October 2018: The defence brought an application for a mistrial based on the Crown’s cross-examination of Mr. Cummins using video evidence not tendered in its case
• 1 November 2018: Forestell J. granted the mistrial application. A new trial date was set for 8 November 2018 by McMahon J.
• 8 November 2018: The second trial commenced. Mr. Cummins’s counsel applied to be removed from the record and the Crown severed him from the indictment proceeding only against Mr. Moreira and Mr. Smith
• 6 December 2018: The jury rendered its verdict finding Mr. Smith guilty of Second Degree Murder and Assault; and Mr. Moreira guilty of manslaughter and Robbery

[16] The defence argue that the delay in this case exceeds the permissible constitutional timeline set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, and ask that the matter be stayed.

Legal Principles

The Presumptive Ceiling

[17] In Jordan the Supreme Court of Canada dramatically changed the s. 11(b) Charter guidelines which had been in effect since the Supreme Court of Canada’s decision in R. v. Morin.

[18] The Court set a new ceiling of 30 months for offences tried by indictment beyond which delay was presumed unreasonable. Calculation of the time period requires the court to identify the time accruing from the date of charge to the end of the trial (“the total delay”) and the subtraction of delay periods attributable to the defence. This leaves a “net delay” figure.

[19] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. For cases commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.

[20] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial

(2) Subtract defence delay from the total delay, which results in the “net delay”

(3) Compare the net delay to the presumptive ceiling

(4) 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. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases

(5) 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

(6) 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

(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[21] For the reasons set out below, I dismiss the application.

[22] I do so the basis of the following grounds, each of which alone would render the time taken to complete the trial reasonable:

(i) Complexity of the case;

(ii) The mistrial declared by Forestell J. was a discrete event that should be deducted from the total delay resulting in a net delay within the Jordan guidelines;

(iii) The small amount of time by which the Jordan guideline was exceeded was reasonable in light of the systemic conditions existing when Jordan was released and the Crown’s efforts to ensure that the applicant’s s. 11(b) rights were protected.

What Was the Period of Delay in This Case?

The Period of Delay

[23] There is no question in this case that the 30 month ceiling set in Jordan has been breached. The actual time from charge to the end of the second trial is 32 months and 16 days. Although the time period was extended from 8 December 2018 to the end of March 2019, that period of delay was caused by the defence need to prepare, file, and argue its s. 11(b) application to the court. During oral submissions, all parties appear to agree that for the purposes of this argument the relevant end date was the jury’s verdict in the second trial.

Defence Delay

[24] From that period of time, the defence concedes that six days of delay should be deducted as defence delay on the basis that they sought various adjournments during the two trials.

[25] The Crown, on the other hand, argues that defence delay is more substantial. The Crown submits that the preliminary inquiry was scheduled to start on 1 August 2017 only because the defence stated its intention to call 12 witnesses. This led to a longer hearing being scheduled which, in turn, meant a later start date. However, says the Crown, the defence called no witnesses at the preliminary inquiry. In an effort to save time, the Crown called a civilian witness, Mr. Moores, whom the defence wished to cross-examine.

[26] The Crown points out that its case took only eight days to complete. It blames the lack of timely defence admissions and the scheduling of additional time for uncalled witnesses for the bulk of delay. The Crown suggests that if a shorter preliminary inquiry had been set, there would “likely” have been earlier dates available.

[27] There is some substance to this argument. After Jordan and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, defence conduct must be scrutinised in deciding whether the delay was unreasonable. Both Jordan and Cody made clear that admissions on undisputed issues must be made as early as possible and that both Crown and defence should be proactive in avoiding delay: Jordan, at para. 137; Cody, at para. 36.

[28] At the preliminary inquiry, identity was not conceded until the Crown played video evidence. In addition, the defence originally indicated that all the Mr. Big witnesses were required to testify at the preliminary hearing. However, during the hearing, they specified that only two witnesses were required.

[29] I agree with the Crown that these matters should have been conceded in advance of the hearing particularly after multiple judicial pre-trials had been held. I also agree that these matters are fair game when it comes to assessing defence-caused delay in s. 11(b) applications: Jordan, at para. 138; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6.

[30] The difficulty with the Crown’s position, however, is the inability to determine the impact of the lack of admissions as there is no record of what earlier dates were available. Nor does the preliminary inquiry record identify how many days were lost due to defence adjournments as argued by the Crown in its factum.

[31] However, for the reasons set out below, the issue of defence induced delay does not need to be addressed.

Exceptional Circumstances

[32] As the period of delay exceeds the presumptive ceiling, the onus falls on the Crown to demonstrate that exceptional circumstances exist. Here, the Crown advances two bases to discharge their burden.

[33] First, the Crown submits the complexity of the case justified a longer period of completion. Second, the Crown relies upon the existence of a discrete event: the mistrial which it says was erroneously granted.

1. Complexity of the Case

[34] The court in Jordan remarked, at para. 78, that a routine murder case would not be sufficiently complex to fall within the exceptional circumstances definition. The court added that “if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance”.

[35] This was far from a routine case: there were three accused, and a diversity of factual and legal positions. The court, in Jordan, at para. 77, recognised multiple accused as a potential factor in assessing reasonableness of the delay. See also: R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 174. Factually, this was not a case where severance of the accused was a desirable or effective option.

[36] There were also over 90 witnesses and over 150,000 video clips to be viewed. The Mr. Big investigation resulted in thousands of pages of transcripts and numerous audio recordings that were subject to Toronto Police Service protocols and procedures. These required the undercover officers personally involved in the investigation to assess the transcripts for accuracy. This protocol was initiated to prevent delay by eliminating errors and disputes about what was actually said. One of the officers was on bereavement leave and his absence held up the review which led to a delay in disclosure. Local and systemic circumstances such as this have a role to play in assessing reasonableness of delay: Jordan, at para. 89; Gopie, at para. 173.

[37] In addition, there were warrants, production orders, and wiretap authorisations which required both review and redaction to protect privileged information.

[38] The unusual nature of the case is also exemplified by the defence intention to call 12 witnesses at the preliminary inquiry: a rare step at that stage of the proceedings. The fact that the defence ultimately chose not to do so does not detract from the complicated character of the issues in this case.

[39] Nor was the complexity confined to the evidence: the legal issues were also challenging. The defence initially refused to admit identity. Causation of death was strongly contested. Party liability, intoxication, the admission of Mr. Moreira’s utterances and Mr. Smith’s Mr. Big admissions, post-offence conduct, and the required intention for murder were all matters that were the subject of litigation.

[40] It is worth noting that in Gopie, at para. 172, the court dismissed a s. 11(b) appeal on the basis of case complexity. The Court found that the complexity criterion was satisfied due to “voluminous disclosure, out of province witnesses, multiple accused, various pre-trial motions, a seven-day preliminary hearing and a month-long trial”. If anything, this case is of greater complexity.

[41] For these reasons, I find that the two month period in excess of the presumptive ceiling is justified and, on this basis alone, I would dismiss the application.

2. Discrete Event: The Mistrial

[42] As noted, the Crown also seeks to advance exceptional circumstances on the alternative basis of a discrete event that it could not have foreseen: the declaration of a mistrial by Forestell J. requested by all three accused. The Crown argues that the mistrial should not have been declared, and had the application been dismissed, there could be no s. 11(b) application. As support for this proposition, the Crown points to the absence of any defence reference to a s. 11(b) application prior to the mistrial ruling.

[43] In Jordan, at para. 73, the Court described the following consideration for assessing a discrete event: “exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay”.

[44] The mistrial related to the use of 11 video clips played by the Crown in its cross-examination of Mr. Cummins. Approximately 150,000 video clips had been disclosed to the defence prior to the preliminary inquiry. The Crown tendered 58 of those clips as part of its case. After closing, the Crown realised that there were two more video clips - capturing events after Mr. Noureddine’s death - which it had forgotten to tender in its case. Accordingly, it sought leave to re-open prior to the defence calling witnesses. Mr. Moreira opposed the Crown’s request but Mr. Smith and Mr. Cummins consented. Forestell J. granted the Crown’s application and permitted the Crown to file the two videos.

[45] Mr. Cummins took the stand on 23 October 2018 and testified to all three accuseds’ consumption of alcohol and drugs throughout the day leading up to Mr. Noureddine’s death. He expressed the view that when the three men left the apartment all were significantly intoxicated. Mr. Cummins described how they left the apartment building, and parked in the alleyway adjoining Lola Road. He went on to provide his account of how Mr. Noureddine died.

[46] Mr. Cummins was cross-examined by counsel for Mr. Moreira and Mr. Smith and repeated his assertions that all three parties were intoxicated prior to their arrival at Lola Road.

[47] Mr. Cummins’ testimony was the first time the Crown had the opportunity to hear his version of events as he had not provided a prior statement. Ms. Richards, lead Crown counsel, cross-examined Mr. Cummins and introduced 11 new video clips showing the three accused together that evening. They were seen getting into their cars to drive to Mr. Cummins’ girlfriend’s residence two hours before the murder. The Crown also played a video showing Mr. Moreira as he looked when last captured on camera.

[48] Mr. Cummins adopted the contents of the video and identified the parties, location, and content. The defence raised no objections to the use of the videos as they were being played. After a recess, however, counsel for all three accused lodged objections to the use of the videos in the Crown’s questioning of Mr. Cummins. The cross-examination and re-examination of Mr. Cummins were, however, completed.

[49] The next day all three accused brought a mistrial application arguing that the use of the videos played in Mr. Cummins’ cross-examination was improper.

[50] Forestell J. granted the defence application for a mistrial. She concluded that the videos should not have been played without a voir-dire determining the videos’ admissibility, the scope of cross-examination, and the instruction to be given to the jury. She noted that there had been no reason given by the Crown of its failure to “follow the proper procedure for the introduction of evidence”.

[51] Forestell J. agreed that the Crown had acted improperly by playing the videos in cross-examination. She held that all of the impugned videos would have been admissible as part of the Crown’s case and three would have been ruled admissible for cross-examination purposes. However, she ruled that some of the clips had no impeachment purpose particularly those showing Mr. Smith driving his car through the underground parking lot; the clips where Mr. Cummins was asked to identify Mr. Smith as the driver of a car; and the video showing Mr. Moreira talking on a phone. Relying on R. v. Khan, 2011 BCCA 382, 282 C.C.C. (3d) 396, Forestell J. ruled that these segments should not have been played as they were being used for “substantive” purposes, and were therefore “fundamentally unfair” to the accused. Since no other remedy was available, Forestell J. declared a mistrial.

[52] The Crown argues that Forestell J.’s ruling was in error and flies in the face of established law. They further argue that Khan had no application in this case and that Forestell J. ignored relevant case law relied upon by the Crown. Mr. Cole suggests that the mistrial was an event that the Crown could not foresee and must be characterised as a discrete event.

[53] The defence disagree and argue that Forestell J.’s ruling was correct in law. They further point to comments made by the Crown when seeking to reopen its case that the playing of videos not tendered in its case would cause prejudice and be the subject of controversy.

[54] For the following reasons, I find that the declaration of the mistrial was a discrete event within the definition of Jordan and the delay resulting from that event should be deducted from the overall delay. In essence, this would mean that the trial would have completed within the presumptive ceiling.

[55] I begin my analysis of this issue by stating that in finding the mistrial to be an exceptional circumstance, I do not express an opinion on the correctness of Forestell J.’s decision. The focus here is on whether the Crown would know that their actions would cause a mistrial.

[56] What is worth remembering is that when Mr. Cummins testified, the Crown had no prior statement from him and was hearing his version of events for the first time. That version included the assertion that all three parties were heavily intoxicated through ingestion of alcohol and drugs throughout the day. The videos played to Mr. Cummins demonstrated the accuseds’ demeanour and ability to drive vehicles without much difficulty. The effect of these videos was to contradict the potential defence of intoxication raised by Mr. Cummins in his testimony.

[57] In dealing with this issue, and whether the Crown could foresee what might follow, I make the following observations.

[58] First, I can find no authority that states that videos which have been disclosed and deemed admissible in the Crown’s case are subject to different rules of admissibility simply because they are being used to cross-examine an accused. I could also find no authority standing for the proposition that a voir-dire needs to be held before the Crown can use otherwise admissible videos to cross-examine an accused. Doing so would force the Crown to reveal its cross-examination to the accused and impose an unfairness.

[59] Nor am I aware of any authority that states evidence adduced in cross-examination may not be used for substantive purposes. Although Forestell J. relied on the British Columbia Court of Appeal’s decision in Khan, that situation differs from the events in this case. There, the British Columbia Court of Appeal dealt with the use of an accused’s statement not tendered as part of the Crown’s case but introduced only for impeachment purposes. However, the Crown went further and appeared to use the accused’s statement for a completely different purpose, namely to demonstrate Mr. Khan’s demeanour and lack of concern for the victim’s death and the loss of their unborn child. Frankel J.A., writing for the court, felt that the evidence amounted to post-offence conduct that should have been led in the Crown’s case.

[60] Tellingly, in R. v. West, 2015 BCCA 379, 329 C.C.C. (3d) 97, the Crown cross-examined the accused on information that had been provided by his co-accused to a police officer. That information had not been led in the Crown’s case and was put to the accused in the form of facts that the accused had the option to accept or deny. The defence appealed relying on Khan. On appeal, the British Columbia Court of Appeal, with Frankel J.A. on the panel, held that Khan did not apply and that there was nothing improper in the Crown framing questions based on the description of the events provided by the co-accused to the police.

[61] In addition, the fact that Mr. Cummins identified his co-accused in previously disclosed video clips - thereby becoming substantive use evidence - does not make that evidence prejudicial or subject to a ruling by the trial judge. For example, with any defence witness, the Crown would be free to cross-examine on a prior inconsistent statement made by that witness. The purpose would be to impeach the witness’s credibility. However, if that witness adopted any of the contents of the prior statement, that would become substantive use evidence: R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827, at para. 37.

[62] It is also clear that the weight of legal authorities would have favoured the approach taken by the Crown in this case.

[63] In R. v. Chaulk, [1990] 3 S.C.R. 1303, at para. 119, Lamer C.J.C. made the following observation:

The principle that the Crown is obliged to adduce, as part of its case, only evidence that is relevant to an element of the offence that the Crown must prove is affirmed by the corollary principle that the Crown need not adduce evidence in chief to challenge a defence that an accused might possibly raise. I approve of the analysis in this respect of Peter K. McWilliams, Q.C., in Canadian Criminal Evidence (3rd ed. 1990), at p. 31-5:

In R. v. Campbell (1977), 38 C.C.C. (2d) 6 (Ont. C.A.), Martin, J.A. said at p. 26:

Rebuttal evidence by the prosecution is restricted to evidence to meet new facts introduced by the defence. The accused's mere denial of the prosecution's case in the witness-box does not permit the prosecution in reply to reiterate its case, or to adduce additional evidence in support of it. In practice, however, it may often be difficult to distinguish between evidence, properly the subject of rebuttal, and evidence of facts relevant to prove guilt which should have been proved in the first instance by a full presentation of the prosecution's case: see Wigmore on Evidence, 3rd ed. (1940), vol. VI at pp. 510-1.

Clearly relevant issues may arise during the case for the defence which could not have been reasonably anticipated by the prosecution before it completed its case. Indeed, that is the test for the admissibility of rebuttal evidence. The prosecution may have some anticipation that the defence will raise a defence be it innocent intent, accident, mistake, necessity or alibi or that the defence may be calling some expert witness as to the state of mind of the accused or as to the cause of the injury as in R. v. Campbell ... and so on. The defence may give some hint of the line of its defence in the cross-examination of Crown witnesses but in many cases it would be speculative and presumptuous for Crown counsel to anticipate: R. v. Perka et al., (1982), 69 C.C.C. (2d) 405 (B.C.C.A.). It would be, moreover, difficult and wasteful in time because Crown counsel could not be sure of just the exact issue or evidence it had to meet. None the less the prosecution must adduce all the evidence to prove the material ingredient of the offence.

[64] In other reply evidence cases, the appellate courts have made clear that the Crown cannot split its case to obtain an unfair advantage: R. v. Aalders, [1993] 2 S.C.R. 482, at para. 38. The “splitting” would occur when the defence had finished its case and could call no further evidence. If the Crown waited until then to call evidence it should have called earlier, an unfair advantage would accrue through defence inability to respond. That is not what happened here. As the videos were played during the defence case, there was an obvious opportunity to respond by calling further evidence.

[65] Moreover, the evidentiary purpose of the tapes was to contradict facts introduced by Mr. Cummins: all three accuseds’ level of intoxication. As noted, the Crown could not know for certain what Mr. Cummins was to say until he testified. Even if it suspected that intoxication was an issue in play, the Crown could properly wait, as per Chaulk, until the issue had been put into play by the defence before adducing evidence to counteract it.

[66] In R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at paras. 42-43, Watt J.A. remarked:

The rule governing the order of proof in the context of a criminal trial prevents unfair surprise, prejudice, and confusion that could result if the Crown were allowed to split its case. Were it not for this rule, the Crown could put in part of its evidence in its case-in-chief, enough to survive a motion for a directed verdict, allow the defence to play through with its case, then add further evidence to bolster the case presented in-chief: Krause, at pp. 473-474; R. v. Biddle, [1995] 1 S.C.R. 761, at para. 13.

But the rule about the order of proof erects no absolute bar to the introduction of further evidence by the Crown after the defence has closed. The Crown may be permitted to call evidence in reply after completion of the defence case where:

i. the defence has raised some new matter or defence with which the Crown had no opportunity to deal and that the Crown could not reasonably have anticipated; or

ii. some matter that emerged during the Crown's case has taken on added significance as a result of evidence adduced in the defence case. [Emphasis added]

[67] See also: R. v. Quance (2000), 146 C.C.C. (3d) 153, at para. 21.

[68] R. v. R.D., 2014 ONCA 302, 120 O.R. (3d) 260, concerned a trial judge’s decision to prohibit the Crown from adducing reply evidence rebutting an alibi called by the defence because he felt the Crown should have anticipated the alibi would become an issue and called rebuttal evidence in its own case. The Court of Appeal for Ontario disagreed. Tulloch J.A., writing for the court at para. 19, explained that the Crown was not required to call evidence on an issue that was not yet in play and could wait until the defence raised that issue before calling evidence to rebut it reply.

[69] Cases such as Chaulk, Quance and R.D. dealt with reply evidence which has far more potential for prejudice than the use of rebuttal evidence in cross-examination.

[70] Moreover, as noted in Chaulk, if the state of the law is that the Crown is restricted to only using evidence that it has adduced in its own case when cross-examining defence witnesses, the Crown would be forced to call every single item of evidence in its possession, no matter how irrelevant, as an anticipatory measure for fear of being unable to use that evidence if it became a “live” issue when defence witnesses testified.

[71] Ironically, this would lead to an increase in delay and “prolong and potentially confuse trials by requiring that the Crown lead evidence on matters which, in the end, may have virtually no significance in a particular case”: R. v. W. (A.) (1991), 3 O.R. (3d) 171 (C.A.), at para. 34. Not only might the trial be unnecessarily lengthened but the Crown would also be forced to undermine its case by raising issues which might never be advanced by the defence: R.D., at para. 27. It should also be noted that the Court of Appeal for Ontario has frowned upon the Crown calling an excess of evidence even if that evidence is relevant to an issue in the case: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 59-65.

[72] For these reasons, I find that Crown counsel could not have foreseen Forestell J.’s mistrial ruling with respect to the use of the videos.

[73] The defence, on the other hand, point to comments made which they claim demonstrate that the Crown knew its conduct was impermissible and likely to cause prejudice.

[74] First, in its factum to re-open its case, the Crown stated:

Out of fairness the Crown has raised the issue immediately upon recognizing its oversight. Alternatively, the Crown could have remained silent and presented the evidence to the accuseds in cross examination should they choose to testify. Indeed, this application is being brought at this stage so as not to prejudice the accuseds with this highly probative evidence. It may also impact their decision on whether or not to testify.

[75] Secondly, in oral submissions, Ms. Richards, said the following:

I mean, the very reason, Your Honour, that the Crown is bringing the application now is to avoid the issue of whether it could be put in cross-examination or not, in fairness, to ensure that, even though it is in disclosure and has long been so, that it is brought to defence’s notice as part of what they may or may not have to answer. So we brought it now out of that abundance of caution in fairness and not to worry…not to have to deal with the issue of could it be put in cross or not, which the Crown does not concede it could not necessarily… could not absolutely not be put in cross but that is sort of a different issue.

[76] The defence argue that these comments demonstrate that the Crown knew that the videos were not admissible in cross-examination. Accordingly, it must have known that its conduct would cause a mistrial.

[77] I do not read the Crown’s comments that way. In my view, the Crown was acting out of an abundance of caution and seeking to adduce evidence that it thought was relevant to the Crown’s case. The factum reveals that the Crown believed it had the power to wait until cross-examination before playing the videos but chose to tender them to assist the accused in their decision to testify. This was not a legal obligation but a use of Crown discretion. Ms. Richards’ comments clarified the Crown’s position and made clear that in her view the material could be used in cross-examination.

[78] For these reasons, the Crown could not have known that their use of the video clips in cross-examination would have caused a mistrial and I find it to be a discrete event.

[79] That finding is not enough to deduct it from the total delay without Crown action to rectify matters or remediate the effect of the event: Jordan, at paras. 74-75. When the discrete circumstance arises close to the end of the ceiling, as it did in this case, “it will be more difficult for the Crown and the court to respond with a timely solution”: Jordan, at para. 74.

[80] Here, both the Crown and the court acted with extreme expediency. First, the Crown and the court re-arranged the schedule to immediately resume the trial. In addition, when Mr. Cummins fired his counsel, the Crown severed him from the indictment to protect Mr. Moreira and Mr. Smith’s right to a trial within a reasonable time.

[81] For these reasons, I find that the time from end of the mistrial to the end of the second trial date is a discrete event within the Jordan principles and should be deducted from the total delay leaving the net delay within the Jordan guidelines.

Transitional Exception

[82] This case preceded Jordan by approximately three months and would qualify as falling within the Jordan transitional exception. The court identified two separate aspects of the transitional exception.

[83] First, if the case was already in the system prior to Jordan, the Crown could not be held to the new standard of s. 11(b) analysis when operating under the previous Morin regime. However, I agree with the defence that this rationale cannot be available to the Crown. Only three months had elapsed before Jordan was released: the Crown could hardly be said to have relied upon the Morin principles for this case.

[84] However, secondly, at paras. 97-98, the court made the following observation:

Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay - even if it is significant - will not automatically result in a stay of proceedings.

On the other hand, the s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.

[85] I agree with the Crown that it is entitled to rely on these passages in arguing the small period of time exceeding the Jordan limit is justified. There can be no doubt that Jordan was a legal thunderbolt for which the system was ill prepared. The Supreme Court of Canada recognised this state of affairs and the fact that change would require time.

[86] Nor should the Crown’s efforts to expedite matters be understated. It sought admissions and attempted to streamline the case. It co-operated with the defence in ensuring witnesses that they wished to call at the preliminary inquiry would attend. They called the one witness that the defence wished to hear from, Jeffrey Moores, in order to keep things on track.

[87] In my view, in the context of this case, the two month excess of the Jordan ceiling can be justified by the fact that the case started when the system was operating under the Morin regime. The institutional delay countenanced in the Morin era needed time to adapt itself to new dramatically different Jordan framework.

Conclusion

[88] For the foregoing reasons, the s. 11(b) application is dismissed.

S.A.Q. Akhtar J. Released: 29 April 2019

COURT FILE NO.: CR-18-70000622 DATE: 20190429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MATTHEW MOREIRA AND PATRICK SMITH

RULING ON SECTION 11(B) OF THE CHARTER OF RIGHTS AND FREEDOMS

S.A.Q. Akhtar J.