Court File and Parties

COURT FILE NO.: 18-A13486 DATE: 2021-03-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Appellant – and – CALVIN MARSHALL Respondent

Counsel: Harmehak K. Somal, for the Appellant Crown Michael A. Johnston, for the Respondent

HEARD: February 24, 2021

REASONS FOR DECISION BEAUDOIN J.

[1] The Attorney General of Ontario, on behalf of Her Majesty the Queen, (“the Crown”) appeals against the order staying proceedings for unreasonable delay made by the Honourable Madam Justice Kehoe of the Ontario Court of Justice at Ottawa Ontario, on February 7, 2020. The appeal is brought pursuant to section 813 (b)(i) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The Crown seeks a re-trial if this appeal is successful.

Chronology

• The Respondent was arrested on November 10, 2018, for impaired driving and driving over 80, contrary to sections 253(1)(a) and 253(1)(b) the Criminal Code.
• November 10, 2018 – Respondent released on promise to appear.
• November 28, 2018 - First Appearance – Matter adjourned for disclosure and possibly a Counsel Pre-Trial (CPT).
• January 2, 2019 - Court appearance – Matter adjourned for Judicial Pre-Trial for January 22, 2019 and a CPT in the interim.
• January 30, 2019 – Court appearance – Counsel advised that 1.5 days have been approved for trial. December 3 - 4, 2019 were the first available trial dates that were offered and accepted by both counsel.
• The trial commences December 3, 2019.

[2] On December 3, 2019, the Respondent was arraigned before the trial judge where he entered a plea of not guilty. The Crown called and examined its first witness, Constable Chris Warren. Prior to the cross-examination of this first witness, the court took a short recess.

[3] When court reconvened, the following exchange appears on the record:

The Court: I just spoke with counsel in the back. When I went upstairs or received a call on a personal issue. It’s all relative to my family and I have to leave to go to the hospital and I don't know when I’ll be back. So, I’ve spoken to counsel to say that if they want to reconsider and strike it may be faster than when I’m going to be back, and I’ll leave the materials here. Otherwise …

Mr. Lalande (for the Crown): Thank you perhaps we just mark it into 7 (remand court)

The Court: …maybe put it in number 7…

Mr. Lalande: Yes,

The Court: … to speak to tomorrow morning.

Mr. Lalande: Thank you. Counsel will speak in the meantime. Thank you, Your Honour.

The Court: Okay Thank you. And I apologize to Mr. Marshall and the officer.

Clerk of the court: Court is closed. (Emphasis mine)

[4] The matter was a traversed to Justice of the Peace Kreling for adjournment dates. The following exchange appears on the record.

Mr. Lalande: …I’m sorry to interrupt your list. We’ve had a bit of an unusual situation. Mr. Johnston and I are here from Courtroom 4. Our judge had to leave because of an emergency. The judge in 7 also had to leave for an emergency and we need to adjourn our matter that was started for a trial this morning. If it’s not too much trouble were hoping you could just accommodate here for a moment, please.

The Court: That’s what you got.

Mr. Lalande: Thank you. So, I’ll just hand up the docket and the info. We’ve heard some evidence at our trial, Your Worship, and with our judge’s departure we’ve obtained a continuation date on February 20th and have a green sheet for that purpose.

[5] After further exchange Mr. Johnston says:

Mr. Johnston: Also want to confirm that my friend is correct. We did hear approximately an hour of evidence this morning at which point in time unfortunately Justice Kehoe was not able to continue.

However, in terms of this adjournment request I’d just like the record to accurately reflect that we subsequently attended trial coordination and there were efforts being made by trial coordination to provide an available court. At the time it sounded as if Justice Bourgeois may have had an availability for the rest of the day today and tomorrow. Given the fact that we'd only heard one hour of evidence it was our preference, given the fact that we’re retained and prepared to proceed today and tomorrow, that the evidence we’d heard be…

The Court: Yes

Mr. Johnston: Well, ultimately the trial gets struck and be reassigned to a new judge. It’s ultimately my friend’s prerogative and their decision (…) in this case the adjournment to February was the preferable course of action. That is respectfully their prerogative, but our preference was to proceed today because, amongst other things, Mr. Marshall has gone out-of-pocket to retain me to be here today and tomorrow and has also taken time off work which – well - costs him more money. So, I just want wish to have the record reflect those considerations please.

Mr. Lalande: I appreciate that Your Worship and I can indicate the matter will complete within the Jordan time frame.

[6] With that, the matter was adjourned to February 7, 2020 (the corrected date) for trial continuation before the trial judge.

[7] At the outset of trial, Mr. Johnston brought an s.11(b) Charter application (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11). After argument, the trial judge made the following oral ruling:

If you look at para. 43 of Belle, which is Tab 1 of the applicant’s book of authorities. It says,

[Take] Taking a bird’s eye view as Jordan asks us to do, it must be remembered that the delay was caused [by the -] by Crown negligence. It was a problem they created; it made sense for them to be the primary actor in formulating a solution.

I’m not saying you created the problem here, but, the 30-month ceiling above them may have lured the Crown and the defence into a false sense of security…it’s perhaps understandable that there would be a fixation on a bright-line cut-off date, when a prosecution must be presumptively stayed. They may have assumed that delays below the ceiling were not a serious problem. But the delay was only a little more than a month and a half under the ceiling. And below the ceiling line of the authority is [well known -] a well-known part of the Jordan jurisprudence. Counsel should have recognized the problem. The culture of complacency was likely partially responsible for the [coun – for] counsel’s lackadaisical attitude.

…majority in Jordan was clear in saying that the system should do better than the 30-month ceiling.

And - and, I - I find that in this circumstance, although the reason I had to leave that day, but before I left at - my mind was addressing Jordan, and the inconvenience and the prejudice to Mr. Marshall because of what happened. I think it was at 11:10 in the morning. And, given that the Crown had only - had one witness examined in examination in chief completed, and then counsel had to go find out from trial coordination whether or not there was another court available.

But as soon as another court was avail - was available, my comments of striking – I - I didn’t discuss mistral with anybody, but I - I - that it could be transferred to another judge and started if somebody was available that day, I think should have been taken to heart by the - the Crown, and they should have preceded when justice Bourgeois became available for a day and a half. And, I’m going to stay the proceedings as a result of the prejudice.

Ms. Somal: Your Honour, I’m just gonna - if I- if I may?

The Court: Sure.

Ms. Somal: if I could just refer to - so, I have three cases here. And they are all from the public courts, Courts of Appeal, and the Supreme Court of Canada. And, they’re listed that mistrial is a remedy of last resort. Is only to be used in the clearest of cases. Where an - where an adjournment is available, then the adjournment should be taken, and a mistral should not be declared.

And, once again I would just reiterate that this was not a case which - which was so clear, which caused so grave a prejudice to the applicant, that a mistrial should have been declared in that case.

The Court: Well, Mr. Lalonde didn’t raise any issue when I talked about, that it could go before a - another judge that day. So, in my mind he wasn’t -

I mean it was a different circumstance.

Ms. Somal: It was an exceptional circumstance…

The Court: Exactly.

Ms. Somal: …as - as Your Honor has pointed out.

The Court: And, there was another judge available to - to - to do that role but for one witness being called in the accused being arraigned before me. I think you know, given Jordan, given the inconvenience of the prejudice to Mr. Marshall, having to pay for a lawyer for another two days, the Crown should have considered that. And, I - I – I my decision stands I’m granting the stay.

In these circumstances, just because I find that they were exceptional, everything came together where his trial could have happened that day - those two days.

(Emphasis mine)

Position of the Crown

[8] The Crown submits that the trial judge erred in staying the case and by holding that the accused’s section 11(b) rights had been breached as a result of the Crown’s failure to consent to a mistrial application which had never been brought or considered.

[9] Crown further submits that, although the trial judge considered the two-month delay occasioned by her family emergency as an exceptional circumstance, she failed to properly assess the presumptive reasonableness of that delay based on the only available remedy in this case, namely an adjournment.

[10] Further, the Crown submits that the trial judge erred in law in finding that the defence met its onus of showing that:

1. He took meaningful steps and made sustained efforts and expediting the case when there was no effort by defence to make a mistrial application or an application for a trial continuation, and
2. The case took markedly longer than it reasonably could have been when the projected delay on the first trial is 12 months and 15 days and total delay is 14 months and 20 days.

[11] Finally, the Crown submits that the trial judge did not properly direct herself on the local knowledge of the length of similar cases in this jurisdiction and that the trial judge erred in applying the wrong threshold for the Crown’s conduct.

The Respondent’s Position

[12] The Respondent describes this appeal as frivolous. He submits that the Crown’s argument that the 66-day delay should be attributed to the trial judge’s family emergency ignores the role Crown counsel played in delaying the Respondent’s trial. He argues that the Crown chose not to proceed with the trial when the option was readily available and that the additional delay could no longer be attributed to the exceptional circumstances of the trial judge and therefore became the result of Crown delay.

[13] The Respondent submits the Crown had an opportunity to remedy the delay that was caused by exceptional circumstances and chose not to do so.

[14] He relies on the Crown’s refusal to consent to have the plea struck and he relies on section 669.2 of the Criminal Code.

[15] The Respondent submits that he had no obligation to bring a mistrial application. He argues that because the trial judge suggested striking the plea and offered the solution of commencing the trial before a different judge, the requirement to bring a mistrial application was rendered superfluous in that the trial judge suggested that she subsequently would have approved such an application if it had been brought. Any attempts by defence counsel to bring an application for a mistrial would have been futile and time- consuming resulting in a frivolous application.

[16] He further argues that Crown counsel not only could have, but also had a duty to apply and remove and replace the seized judge.

[17] In oral argument, Mr. Johnston submitted that the Crown is estopped from making its current arguments because Mr. Lalande attended at trial coordination where it was discovered that another judge could have conducted the trial later the same day. He argues that the Crown should have consented to the Respondent’s plea “being struck” and gone ahead that day.

[18] In his Factum, the Respondent goes further and seeks costs against the Crown based on Crown misconduct.

The Relevant Provisions of the Criminal Code

Jurisdiction

Section 669.1 (1) Where any judge, court or provincial court judge by whom or which the plea of the accused or defendant to an offence was taken has not commenced to hear evidence, any judge, court or provincial court judge having jurisdiction to try the accused or defendant has jurisdiction for the purpose of the hearing and adjudication.

Adjournment

(2) Any court, judge or provincial court judge having jurisdiction to try an accused or a defendant, or any clerk or other proper officer of the court, or in the case of an offence punishable on summary conviction, any justice, may, at any time before or after the plea of the accused or defendant is taken, adjourn the proceedings.

Continuation of proceedings

Section 669.2 (1) Subject to this section, where an accused or a defendant is being tried by

a) a judge or provincial court judge,

b) a justice or other person who is, or is a member of, a summary conviction court, or

c) a court composed of a judge and jury,

as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant. (Emphasis mine)

Section 686 (4) Appeal from acquittal

(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

Appeal by defendant, informant or Attorney General

813 Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him,

(ii) against a sentence passed on him, or

(iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and

(b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court

(i) from an order that stays proceedings on an information or dismisses an information,

(ii) against a sentence passed on a defendant, or

(iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial,

and the Attorney General of Canada or his agent has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province or his agent has under this paragraph.

[19] In summary conviction appeal proceedings, the Crown may appeal based on grounds of fact, mixed fact in law, or law alone. [^1]

[20] The standard of review, on an appeal based on a question of law, is correctness [^2]. The standard of review for findings of fact, or mixed fact and law, is such is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error” [^3]. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge's decision if there was some evidence upon which he or she could have relied to reach that conclusion.

[21] The Ontario Court of Appeal has held that characterization of periods of delay in the ultimate decision of whether the delay was reasonable, is reviewed on a standard of correctness. [^4] The underlying findings of fact, however are reviewed on the standard of palpable and overriding error. [^5]

Analysis and Conclusion

[22] For the reasons that follow, I do not consider this application to be frivolous. I grant the appeal sought by the Crown and order a new trial.

The offer “to strike the plea”

[23] At the outset of the argument, I asked Respondent’s counsel to explain his understanding of the trial judge’s suggestion that the accused’s “not guilty” plea be struck.

[24] I am only aware of one circumstance where a trial judge can strike a plea as set out in section 606(1.1) of the Criminal Code and this only arises in the case of a guilty plea.

606 (1.1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

Conditions for accepting guilty plea

(1.1) A court may accept a plea of guilty only if it is satisfied that

(a) the accused is making the plea voluntarily;

(b) the accused understands

i. that the plea is an admission of the essential elements of the offence,

ii. the nature and consequences of the plea, and

iii. that the court is not bound by any agreement made between the accused and the prosecutor; and

(c) the facts support the charge

[25] Mr. Johnston could not refer me to any other statutory provision that allowed for the “striking of a plea” but he assured me that this form of expedited “do over” is done all the time here in the Ontario Court of Justice in Ottawa.

[26] In his Factum, Mr. Johnston argued that this offer to “strike the plea” was an informal invitation by the trial judge for a mistrial application which she would have granted. That argument fails because the trial judge admitted when rendering her decision on the 11(b) application that she had not turned her mind to the issue of a mistrial and noted specifically that no one had asked for one.

I never addressed my mind to the fact that I could have had to declare mistrial and get into that jurisprudence. But nobody said anything about it, a mistrial could only be declared in the - in …

[27] After sending counsel off to consult with the trial coordinator on December 3, the trial judge immediately left the courthouse and was unavailable on that date to hear any application. I conclude that nothing turns on the fact that the Crown may have proceeded to find out if another judge was available. Jurisdiction cannot be conferred on another judge by consent. This was not a matter of the Crown’s “prerogative” as stated by Respondent.

[28] Judges of the Ontario Court of Justice exercise a statutory jurisdiction only. There is no provision in the Criminal Code to strike a “not guilty plea” and allow the trial to continue before a different judge. Once the trial judge commences to hear evidence, they are seized of the matter.

[29] As the Crown correctly points out, and the trial judge seems to have anticipated, the declaration of a mistrial is a remedy of last resort. The Court of Appeal has characterized mistrial as “a remedy of last resort only to be granted where necessary to prevent miscarriage of justice.”. further, it should only be granted “in the clearest of cases in where no remedy short of that relief will adequately redress the actual harm occasioned.” [^6]

[30] The test on an application of mistrial is “whether the [accused’s] ability to make full answer and defence has been impaired. [^7] Similarly, a mistrial could arise where there is a “real danger that the trial fairness has been compromised,” [^8] a “danger of miscarriage of justice” [^9], or an apprehension of bias. [^10]

[31] A finding of mistrial is the discretionary power of the trial judge. [^11] This is because the trial judge is best positioned to determine the impact of misconduct on accused fair trial interests. [^12]

[32] As the trial judge noted, no application for mistrial was brought in this case. Even if it had been, the test for a mistrial was far from being met.

[33] The Respondent relies on section 669.2(1)(c) which expressly refers to a continuation of proceedings before another judge. There is no evidence before me that the trial judge intended to turn the trial before her into a continuation before another judge.

[34] Even if it had been the intention of the trial judge or counsel for the defence, I am satisfied that such a remedy was not available on the facts of this case. The case law on trial continuation contemplates circumstances where the trial judge is unable to continue presiding over the trial indefinitely. Examples include appointment to the appellate court [^13], unforeseen circumstances such the administrative judge appoints another judge for the trial [^14] or self-disqualification. [^15] (Emphasis mine)

[35] In this case, an exceptional circumstance arose mid-trial due to the trial judge’s family emergency. As a result, the presiding judge had to leave mid-trial, without adjourning the matter or declaring a mistrial. The only legal remedy available was to adjourn the matter which is what happened in this case.

[36] The defence cites the obligation on the part of the Crown to move the case forward and he relies on the Supreme Courts’ decision in R. v. MacDougall, [1998] 3 S.C.R. 45. That case is readily distinguishable. There, the trial judge fell ill and the issue was the replacement of the seized judge. Here, the Crown and defence immediately attended trial coordination and obtained the first available date before the trial judge. The trial judge was not ill and she returned to court one week later.

Was the delay in this case unreasonable?

[37] In R. v. Jordan, 2016 SCC 27, 1 S.C.R. 631, at para. 46, the Supreme Court established a new framework to be applied where a breach of section 11(b) is alleged. At the heart of this new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is 18 months for cases going to trial in the Provincial Court and 30 months for cases going to trial in the Superior Court or case is going to trial in the Provincial Court after preliminary inquiry.

[38] The Jordan framework was thoroughly discussed by the Ontario Court of Appeal in Coulter. The Court held that the analysis begins by calculating total delay, the time from the charge to the end of trial. Net delay is calculated by subtracting delay attributable to defence and that to any exceptional circumstances from the total delay. [^16]

[39] In Jordan, the Supreme court gave direction on what were to be considered “Exceptional circumstances” as follows at paras. 71 and 72:

It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify …(Emphasis mine)

[40] In this case, the trial judge properly concluded that exceptional circumstance existed. There is no dispute on this point. I find that the trial judge erred when she concluded that the presumptively reasonable delay, two months between the first trial date and the continuation date became unreasonable when she attributed that delay to the Crown.

[41] Where the delay falls below the presumptive ceiling, the Court in Jordan held the following at para. 82:

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

[42] The Court in Jordan went on to comment on the defence onus at paras. 84 and 85:

To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” (Morin, at p. 802). Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form.

To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly. (Emphasis mine)

[43] In this case, the trial judge did conduct a short inquiry to consider what the defence did and could have done, however, I conclude that she further erred in misplacing the burden on her limited availability on the Crown instead of on the defence.

[44] I am satisfied that the defence only made token efforts by putting on the record his preference to proceed to trial before another judge on December 3, 2019. I have already determined that this option was not available.

[45] The defence could have made an application for a mistrial but did not. When questioned by the trial judge on why such an application was not brought upon her return a week later, there was no answer on the record from defence counsel. There was no evidence of the trial judge’s availability until the trial continuation date.

[46] The trial judge erred in law when she referred to her comments from December 3, 2019 with regard to “striking the plea” and stated: “it could be transferred to another judge and started if somebody was available that day, I think that should have been taken to heart by the Crown.”

[47] As the Jordan case informs us at para 87, 89 and 90:

Next, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.

In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

[48] I am satisfied the trial judge did not properly direct herself on the law in staying proceedings pursuant to section 11(b). Specifically, the trial judge failed to take notice of how long impaired driving cases take in this jurisdiction. Until the first trial date, this case unfolded in an unexceptional manner. The trial date was set within three remands.

[49] There is no evidence that a net delay of 12 months and 15 days (or even a total delay of 14 months in 20 days) markedly exceeds the time requirements of a similar case in this jurisdiction. It does not constitute one of the rare, clear cases were stay proceeding should be granted.

[50] In this case, the trial judge erred by considering her family emergency as part of the total delay and attributing that delay to the Crown.

[51] The trial judge applied the wrong threshold for evaluating the Crown’s conduct in obtaining the first available continuation dates. She concluded that the Crown should have consented to a continuation of the trial before a different judge in the absence of an application for a mistrial or an application under section 669.2. I have already stated my conclusion that an adjournment was the only legally permissible option available.

[52] While it is regrettable that Mr. Marshall’s trial had to be adjourned at some additional cost to himself, this was unavoidable in these circumstances.

Released: March 15, 2021 Mr. Justice Robert N. Beaudoin

Footnotes

[^1]: R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98 [^2]: R. v. Shepherd, 2009 SCC 35, 2 S.C.R. 527, at para.19 [^3]: Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235, at para. 9 [^4]: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71 [^5]: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 31 [^6]: R. v. Gager, 2020 ONCA 274, at para.91 citing R. v. Chiasson, 2009 ONCA 789, at para.14; R. v. Toutissani, 2007 ONCA 773, at para 9. [^7]: R. v. T. (L.A.) (1993), 14 O.R. (3d) 378 (Ont. C.A.), at para.8 [^8]: R. v. Khan, 2001 SCC 86, 3 S.C.R. 823, at para. 79 [^9]: R. v. Burke, 2002 SCC 55, 2 S.C.R. 857, at para. 74 [^10]: Ibid. [^11]: R. v. G.C., 2018 ONCA 392, at para. 4 [^12]: Gager, supra note 6, at para. 91 [^13]: R. v. Roper, 2015 BCSC 2190, at para. 9 [^14]: Roper, supra note 13, at para. 11 [^15]: R. v. Hatton, [1978] O.J. No. 460, 39 C.C.C. (2d) 281, at para. 14 (Ont. Supreme Ct. (C.A.)) [^16]: Coulter, supra note 5, at paras. 34-40