Court File and Parties

Court File No.: CR-21-00000652-00AP Date: 2024-05-06 Ontario Superior Court of Justice

Between: His Majesty The King, Respondent And: Buhendwa Mushamuka, Appellant

Counsel: Leila Mehkeri, for the Crown Buhendwa Mushamuka, self-represented

Heard: February 7, 2024

Justice: C. Petersen

Reasons for Decision on Appeal

NOTE: This appeal was heard bilingually, in French and English, pursuant to the expressed preference of the appellant, who is francophone but bilingual. The trial transcripts filed in the record are partly in English and partly in French because the trial was also conducted bilingually, in accordance with the appellant’s election under s.530 of the Criminal Code. The appellant requested that my Reasons for Decision be written and published in English. I have therefore drafted this Decision in English, but where I quote French portions of the transcript, I do so without translating the transcript to English.

Introduction

Overview

[1] The appellant, Buhendwa Mushamuka, was convicted of an offence under s.320.14(1)(b) of the Criminal Code, namely having a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood within two hours of ceasing to operate a motor vehicle. He was sentenced to 30 days in jail, a 3-year driving prohibition, and 2 years probation.

[2] He appeals both his conviction and sentence. He raised over a dozen grounds for appeal. I have allowed the conviction appeal on the basis that he was denied his constitutional right to a fair trial due to prejudice caused by the late disclosure of evidence by the Crown. It is therefore unnecessary for me to consider the other grounds for his conviction appeal or to make any determination with respect to the sentence appeal. I have, however, considered and rejected his request for a stay of proceedings based on unreasonable delay in sentencing. My reasons are set out below.

Circumstances Giving Rise to the Charge

[3] On February 13, 2019, Mr. Mushamuka was driving home from work when his vehicle was stopped by police. Upon request, he provided a breath sample to Officer Kirk MacDonald at the roadside. It registered a fail. He was immediately arrested, cautioned, read his rights to counsel, and taken into custody. He was transported to a police detachment, where he exercised his right to counsel and later provided additional breath samples to a certified technician. Elevated blood alcohol concentration readings were derived from those samples.

[4] Officer MacDonald did not personally observe Mr. Mushamuka engaging in any problematic driving behaviour. He conducted the traffic stop solely because he received information from a 911 dispatcher about a complaint from a civilian witness who reported observing a car in the vicinity that was swerving all over the road. The description of the car provided by the witness was consistent with that of Mr. Mushamuka’s vehicle.

The Trial

[5] A two-day trial was conducted by Justice Wendl in the Ontario Court of Justice on August 19 and 20, 2020. Mr. Mushamuka represented himself. Thomas Meehan represented the Crown.

[6] The trial began with Mr. Mushamuka asking the Court to remove Mr. Meehan as the lawyer for the Crown. He made this request based on an allegation that Mr. Meehan had refused to disclose to him evidence related to a 911 call in the context of a prior prosecution, which Mr. Mushamuka submitted led to his wrongful conviction. No evidence was adduced by Mr. Mushamuka to support this allegation.

[7] Justice Wendl questioned Mr. Mushamuka to obtain clarification. Mr. Mushamuka confirmed that Mr. Meehan’s alleged refusal to disclose evidence was in connection with a different case that was under appeal. He also confirmed that he had received disclosure from the Crown of a 911 call in the case at bar, in both audio and written transcript formats. He stated that the 911 evidence disclosed to him in this case “has been very, very helpful for me to found how witnesses lied.”

[8] Justice Wendl held that the disclosure issue was unrelated to the present case. He queried whether he had authority to remove Mr. Meehan as the Crown lawyer and ultimately ruled that there was no basis to do so on the facts before him.

[9] Mr. Mushamuka then asked for confirmation that the Crown had made full disclosure to him in this case. He stated:

Si vous me permettez, donc avant que ça puisse continuer, j’allais demander devant la Cour si la Couronne a d’autres informations à fournir à la Défense, des findings ou des disclosures additionnelles que je n’suis pas au courant. C’est le temps de la faire, sinon ça sera pas accepté.

[10] The trial judge then asked Mr. Meehan, « Est-ce qu’il y a d’autres divulgations? » Mr. Meehan replied unequivocally, « Non ».

[11] This exchange is an important element of Mr. Mushamuka’s grounds for appeal. It demonstrates that Mr. Mushamuka understood the Crown could not introduce any evidence in the trial that had not previously been disclosed to him (i.e., « C’est le temps de la faire, sinon ça sera pas accepté. ») I will refer back to this exchange later in my reasons.

[12] Mr. Mushamuka had filed applications seeking exclusion of evidence related to his breath samples under s.24(2) of the Canadian Charter of Rights and Freedoms. He was asserting multiple breaches of his constitutional rights guaranteed by ss. 7, 8, 9, and 10(a) of the Charter. In opening submissions, among other things, he advised the Court of his position that the traffic stop was racially motivated. Mr. Mushamuka is a Black man. He claimed that the police had no legitimate grounds to stop his vehicle and no grounds to ask for a breath sample. He stated that he was therefore arbitrarily detained and subjected to an unreasonable search and seizure, in violation of ss. 8 and 9 of the Charter.

[13] The trial proceeded with a blended voir dire (i.e., a mini hearing to permit the judge to decide the Charter applications, with the evidence adduced deemed to be evidence for the purpose of the trial as well). Sean Baker was the first witness to testify. He is the individual who telephoned 911 to complain about the erratic driving of a vehicle on highway 6. The next two witnesses were police officers, including Officer MacDonald, who conducted the traffic stop that led to Mr. Mushamuka’s arrest.

[14] Prior to the trial, Mr. Mushamuka received disclosure from the Crown, including a will-say statement for Mr. Baker, as well as an audio recording and transcript of Mr. Baker’s 911 call. The transcript shows that the call lasted approximately 7 minutes, as Mr. Baker followed the vehicle in question and provided updates on its location. He told the dispatcher the colour (silver-grey), make and model (Nissan Rogue) of the vehicle, but said he was unable to obtain the licence plate number because the vehicle was too far ahead of him, and traffic was heavy.

[15] At the beginning of the 911 call, Mr. Baker was driving northbound on highway 6, just north of Campbellville. He described to the dispatcher how a northbound Nissan SUV was swerving across lanes of traffic. He said he was driving behind a propane truck and the Nissan was quite a distance ahead of him. He later said he was approaching highway 401 and the Nissan was 2 or 3 car lengths ahead of him. Shortly thereafter, he said the Nissan gained some distance on him. Then Mr. Baker told the dispatcher, “He’s gone” (referring to the Nissan). Mr. Baker relayed that he was stuck in traffic. The dispatcher asked whether he could tell if the Nissan had gone onto highway 401, to which he responded, “I can’t tell yet.” A while later, he told the dispatcher that he had crossed over highway 401 and was passing a propane truck. He then stated that the Nissan appeared to be still heading north on highway 6.

[16] The dispatcher advised Mr. Baker that there were police on the road ahead of him and that they would be notified of what was happening. The dispatcher then thanked Mr. Baker. The call ended without Mr. Baker providing a licence plate number for the Nissan.

[17] Officer MacDonald stopped Mr. Mushamuka about 7 minutes later while he was travelling northbound on highway 6, north of highway 401. He was driving a grey coloured Nissan Rogue.

[18] Based on the pre-trial disclosure provided by the Crown, Mr. Mushamuka anticipated that Mr. Baker and Officer MacDonald would testify that Mr. Baker provided the 911 dispatcher with a licence plate number that matched Mr. Mushamuka’s vehicle plate, and the dispatcher provided that plate number to Officer MacDonald prior to the traffic stop. However, the transcript of the 911 call indicated otherwise. Mr. Mushamuka therefore believed that both witnesses were lying about the licence plate, and he adopted a defence strategy of attacking their credibility.

[19] Mr. Mushamuka’s planned defence was to argue that Mr. Baker must have seen a different Nissan Rogue driving erratically on highway 6. He took the position that Mr. Baker’s description of the car was generic and did not match his car, which had sustained visible damage in a collision -- a detail never mentioned to the dispatcher, even though the dispatcher asked Mr. Baker if he could see any distinguishing features on the vehicle. Mr. Mushamuka’s theory was that, after ending the call with the dispatcher, Mr. Baker must have driven by his vehicle stopped by police on the side of the road and noted his licence plate number at that time, which Mr. Baker later falsely claimed to have provided to the dispatcher. Since Officer MacDonald did not observe Mr. Mushamuka driving erratically, Mr. Mushamuka suspected that the officer stopped him because he is Black and only noted his licence plate number after the stop, then lied about having obtained the plate number from the dispatcher to justify his racially motivated actions.

[20] During Mr. Baker’s examination-in-chief, he testified that he made two separate calls to 911 on the date in question. He stated that he called back about four minutes after the first call because he approached the Nissan while it was stopped at an intersection, obtained the licence plate number, and called 911 to provide that information. Mr. Mushamuka had not received disclosure of a second 911 call, and the Crown had assured him (at the outset of the trial) that there was no further evidence to be disclosed. He therefore set out to show that Mr. Baker was lying about having made a second call and was lying about having provided a licence plate number to the 911 dispatcher.

[21] Mr. Mushamuka began to cross-examine Mr. Baker. The trial judge interrupted to seek clarification from the Crown of whether there was a record of a second 911 call and if so, whether it had been disclosed to Mr. Mushamuka. Mr. Meehan argued that the will-say statements and officers’ notes that had been disclosed were sufficient to alert Mr. Mushamuka to the fact that Mr. Baker provided the dispatcher with a licence plate number.

[22] Justice Wendl then remarked that there “might be an issue” if Mr. Mushamuka had requested disclosure of the second 911 phone call after receiving the Crown’s will-say statements, but he did not do so. Mr. Mushamuka protested, “Because it didn’t exist.” While the Crown’s disclosure had alerted him to the fact that Mr. Baker would testify that he provided a licence plate number to the dispatcher, the transcript and audio recording of the first 911 call did not corroborate that assertion, and there was nothing in the Crown disclosure to alert Mr. Mushamuka to the fact that Mr. Baker had made a second call to 911.

[23] Having confirmed that Mr. Mushamuka was unaware of the existence of a second call, Justice Wendl then asked Mr. Meehan whether the Crown knew it existed. After some confusing exchanges, it became clear that everything in the Crown’s possession had been disclosed to Mr. Mushamuka, but that it was possible Mr. Baker made a second 911 call that was not given to the Crown, and therefore was never disclosed to Mr. Mushamuka.

[24] Mr. Meehan suggested that Mr. Mushamuka continue with his cross-examination of Mr. Baker while Officer MacDonald took steps to ascertain whether a record of a second call could be located. Justice Wendl rejected this suggestion, noting that the existence or non-existence of a second phone call was “crucial” to Mr. Mushamuka’s defence, and that the “whole premise of his cross-examination” was to put to Mr. Baker that he never made a second call.

[25] Justice Wendl stood down the trial and directed Mr. Meehan to make inquiries about the possible existence of a second call. After about two hours, the Crown produced an audio recording of the second call, which was played for Mr. Mushamuka in private. During the second call, which lasted about 90 seconds, Mr. Baker provided the 911 dispatcher with the plate number of a Nissan Rogue that he believed was the same vehicle that had seen swerving all over the road. That number matched the licence plate on Mr. Mushamuka’s car.

[26] The trial resumed. Justice Wendl asked Mr. Mushamuka whether he wanted to put the audio recording of the second 911 call to the witness. Mr. Mushamuka did not. Justice Wendl asked him to confirm that he had listened to the late-disclosed 911 call. Mr. Mushamuka responded, “Yes, your honour, the material is not relevant for my cross-examination. I’m gonna continue with the exact I was doing .”

[27] Mr. Mushamuka then continued his cross-examination of Mr. Baker, pursuing his defence theory that Mr. Baker had lost sight of the Nissan during the first call, had never noticed any damage to the Nissan that was swerving across lanes, and had not provided the licence plate number of that Nissan to the dispatcher during the call. Mr. Mushamuka did not ask Mr. Baker questions about the second call.

[28] When Mr. Mushamuka announced that he was finished questioning Mr. Baker, Justice Wendl asked him whether he denied that Mr. Baker had seen his plate number and reported it to the 911 dispatcher. Mr. Mushamuka responded, “It’s not on the 911 phone call, therefore it didn’t happen.” Clearly, he was referring to the first 911 call.

[29] Crown counsel then began to re-examine Mr. Baker. He attempted to play the audio recording of the second 911 call. Justice Wendl asked for what purpose the Crown was seeking to adduce that evidence. Mr. Meehan explained that it was to corroborate Mr. Baker’s testimony in chief that he made two calls to 911 and provided the licence plate number during the second call. Mr. Meehan indicated that, if Mr. Mushamuka was conceding that Mr. Baker provided the licence plate number to the dispatcher during the second 911 call, it would not be necessary to adduce the second call as evidence.

[30] A confusing exchange ensued. Mr. Mushamuka did not make the concession, so Justice Wendl permitted the Crown to adduce the second 911 call during re-examination of Mr. Baker.

[31] Before the next witness was called, Mr. Mushamuka stated that he wanted to make a comment on the record about the second 911 call. He reminded Justice Wendl, « Cette nouvelle élément de preuve, j’avais demandé dès le départ s’y en avait qu’on en fasse connaissance. » He added, « Ça porte beaucoup de jeopardy à ma défense et à ma contre- interrogation , donc la Cour doit être au courant de ça et tenir compte de ça. »

[32] Mr. Mushamuka had conducted his cross-examination of Mr. Baker on the explicit (mis)understanding that the second call could not be used as evidence by the Crown because it was not disclosed prior to the trial. He had expressed his view, at the outset of the trial, that any late-disclosed evidence would not be admissible, and Justice Wendl did not correct him.

[33] When the late-disclosed audio recording was admitted as evidence and Mr. Mushamuka raised a concern about prejudice to his defence, Justice Wendl asked him what remedy he was seeking. Although he did not use the expression “stay of proceedings” (« arrêt des procedures »), that is effectively what he requested. He said, « J’aimerais que ... vous rejetez les allegations. » Alternatively, he asked for the evidence of the second 911 call to be excluded.

[34] Justice Wendl then advised Mr. Mushamuka to file an application for the requested relief, which would be heard after the conclusion of the trial. He added, « Je ne vois pas un grand préjudice à vous en ce moment. Alors, on continue avec le procès. »

[35] When Officer MacDonald testified later that day, he stated that the 911 dispatcher provided him with Mr. Mushamuka’s licence plate number prior to the traffic stop. The trial was adjourned for the day before Officer MacDonald completed his examination-in-chief.

[36] Mr. Mushamuka arrived more than one hour late the next morning. He proceeded to have an emotional outburst during Officer MacDonald’s testimony and was speaking over the Crown and the witness. Justice Wendl took a recess to give him time to calm down.

[37] Upon resuming, Justice Wendl commented that Mr. Mushamuka’s behaviour was markedly different than the day before. He asked whether there was a reason for that. Mr. Mushamuka responded : « Ben parce que hier j’ai eu une nouvelle découverte que je n’étais pas au courant et … c’est ça la raison. » Justice Wendl asked whether he was referring to the previously undisclosed 911 call. Mr. Mushamuka then stated,

Ben – ben qu’est que vous voulez. Là depuis longtemps j’accuse la police, j’accuse les témoins de mentir. J’accuse tout le monde. Mais depuis hier on tombe sur une autre – un petit truc de une minute et demie – qui change toute la donne. Qu’est-ce que j’ai comme défense? Comme moi là, un noir ici et pis la sournoiserie?

[38] Mr. Mushamuka began to rant about personal problems he had endured since his arrest, and he professed his innocence. Justice Wendl asked him whether he needed another break to calm down. Mr. Mushamuka continued to complain about unfairness and reiterated his request for a stay of proceedings: « Vous devez arrêter les procedures… Pouquoi moi j’dois subir ça? »

[39] The trial judge called another recess. Upon reconvening court, Mr. Mushamuka asked to be excused. He stated he did not want to listen to the rest of Officer MacDonald’s evidence-in-chief. He said he would return later to conduct his cross-examination.

[40] Another angry tirade ensued. Mr. Mushamuka asserted that what was happening in court constituted systemic racism. He reminded the trial judge that he had opposed Mr. Meehan being the Crown in his case. Justice Wendl tried repeatedly to get him to stop talking, to calm down and to sit down. The trial judge ultimately resorted to a threat to order Mr. Mushamuka into custody and have him put in handcuffs in the prisoner’s box. Mr. Mushamuka stopped talking and the voir dire continued.

[41] During his subsequent cross-examination of Officer MacDonald, Mr. Mushamuka asked questions about the officer’s personal observations of his driving. The witness acknowledged that he only saw Mr. Mushamuka driving for less than a minute and did not notice anything unusual. He said he stopped Mr. Mushamuka’s vehicle based on the information he had received from his dispatcher that the vehicle was driving in an erratic manner. When asked why he did not follow Mr. Mushamuka’s car to investigate before conducting the traffic stop, he stated that he had a duty to take the first opportunity to stop the vehicle in a safe manner, based on the information that had been relayed to him. He asserted that he had reasonable grounds to believe that Mr. Mushamuka had committed an offence based on the 911 call.

[42] There were then some heated exchanges, during which Justice Wendl cautioned Mr. Mushamuka to stop yelling at the Crown. Mr. Mushamuka completed his cross-examination and the next witness, Carly Keeler, was summoned to the courtroom. Officer Keeler had been subpoenaed by the Crown at the request of Mr. Mushamuka, but Justice Wendl indicated that he would give Mr. Mushamuka some latitude to cross-examine her. Mr. Mushamuka responded that he no longer wanted to question the witness “because this is continuation of systemic discrimination. So, I’m done with this.”

[43] Mr. Mushamuka reiterated his complaint that the trial was unfair. Justice Wendl reminded him that he would be given an opportunity at the end of the trial to make submissions about trial fairness. He responded, “I won’t say nothing in this Court anymore because this is systematic racialist…. There is no kind of justice for Black people.”

[44] Justice Wendl dismissed Officer Keeler and directed the Crown to call the next witness, Scott Anderson, who is a certified breath technician. Mr. Mushamuka asked if he could stand outside the courtroom because he did not want to listen to anything anymore. Justice Wendl directed him to sit down. The blended voir dire continued. Mr. Anderson was examined and cross-examined. Then Mr. Mushamuka testified.

[45] At the conclusion of the evidence on the voir dire, Justice Wendl invited Mr. Mushamuka to make submissions about the late disclosure of the second 911 call before dealing with his other Charter applications. Mr. Mushamuka argued that the Crown’s failure to make timely disclosure of all relevant evidence deprived him of his right to know the case against him and prejudiced his ability to make full answer and defence. He submitted that, as a self-represented accused, he was particularly disadvantaged by the delayed disclosure. He asserted a violation of his constitutional right to a fair trial and argued that the Crown’s conduct brought the administration of justice into disrepute. He submitted that the trial judge ought to have stopped the trial as soon as the missing disclosure was discovered. He requested a stay of proceedings or, in the alternative, an order excluding the late-disclosed evidence.

[46] Justice Wendl did not call on the Crown to make responding submissions. He summarily dismissed the application “based on no reasonable prospect of success and the reasoning in R. v. Cody , (2017) 2017 SCC 31 , 1 SCR 659.” He gave the following reasons for his decision: once it became apparent that some evidence was missing from the Crown’s disclosure, Mr. Meehan took steps to obtain and provide Mr. Mushamuka with the relevant evidence; the audio recording of the second 911 call was short; Mr. Mushamuka had an opportunity to listen to it before continuing his cross-examination of Mr. Baker; the usual remedy for such delayed disclosure would be an adjournment, but none was necessary in this case; and the delayed disclosure does not rise to the level where a stay of proceedings would be warranted.

[47] Justice Wendl then dismissed all of Mr. Mushamuka’s Charter applications, with reasons delivered orally. He heard submissions on the merits of the case and convicted Mr. Mushamuka of the charged offence.

Analysis

Overview of the Parties’ Positions

[48] Mr. Mushamuka argues that he was denied his right to a fair trial because Justice Wendl permitted the Crown to rely on the second 911 call that had not been disclosed to him prior to the commencement of the trial. He submits that he did not know the case he had to meet before the trial started, and he was therefore deprived of the opportunity to make full answer and defence.

[49] Mr. Mushamuka asserts that he would have adopted a different strategy from the outset of the trial had he known about the second 911 call. He submits that, had the second call been disclosed to him in a timely way, he would have made different tactical decisions; he would have hired a lawyer to assist him in his defence and may even have decided to make a guilty plea, knowing the strength of the Crown’s case.

[50] The Crown submits that an adjournment is the appropriate remedy for delayed disclosure of evidence, which is precisely what occurred in this case. Rather than forcing Mr. Mushamuka to continue his cross-examination of Mr. Baker without the benefit of disclosure of the second 911 call, the trial judge suspended the proceeding for a couple hours while the missing call was located and was played for Mr. Mushamuka.

[51] The Crown further argues that it was appropriate to admit the second call as evidence during Mr. Baker’s re-examination, because he had mentioned the second call during his evidence-in-chief, and Mr. Mushamuka had attempted to impeach his credibility on the issue of the licence plate during his cross-examination. It was therefore proper to permit the Crown to rely on the audio recording of the second call to insulate the witness from an unfounded attack on his credibility.

[52] The Crown submits that Justice Wendl’s ruling is consistent with the decision in R. v. Bjelland , 2009 SCC 38, a case in which the Supreme Court of Canada overturned a trial judge’s decision to exclude late-disclosed evidence. The Supreme Court ruled (at para. 3) that “the trial judge committed a reviewable error by failing to consider whether the prejudice to the [accused] could be remedied without excluding the evidence and the resulting distortion of the truth-seeking function of the criminal trial process.” The Supreme Court held that, in most cases, an adjournment will provide an adequate remedy to avoid trial unfairness where there is delayed disclosure of material evidence.

Reviewable Error

[53] I agree with the Crown that exclusion of the late-disclosed second 911 call would not have been appropriate in this case. It would have perverted the truth-seeking function of the trial process had Justice Wendl made factual determinations and credibility findings about Mr. Baker’s testimony based only on the first 911 call, as though the second 911 call had not occurred. As the Supreme Court of Canada stated in Bjelland (at para. 22), a trial must be fair not only from the perspective of the accused but also from the perspective of society more broadly. The public interest in getting at the truth cannot be sacrificed at the alter of procedural fairness to the accused.

[54] I also agree with the Crown that an adjournment could have cured the prejudice to the accused that was caused by the delayed disclosure in this case. However, no adjournment was granted after the second 911 call was disclosed to Mr. Mushamuka. Standing the trial down for two hours to locate the missing evidence is not the type of adjournment contemplated by the Supreme Court in Bjelland. The adjournment must be granted after disclosure occurs, so that the Defence has an opportunity to re-evaluate the strength of the Crown’s case and make tactical decisions and strategic adjustments in response.

[55] The late disclosure in this case required the accused to pivot and completely change his defence strategy mid-trial. An adjournment was required to allow him the opportunity to do so, to ensure that he could adequately respond to the Crown’s case.

[56] Mr. Mushamuka did not request an adjournment after receiving the mid-trial disclosure because he did not know that the Crown could be permitted to adduce the second 911 call as evidence during Mr. Baker’s re-examination. The Crown argues that Mr. Mushamuka cannot seriously claim to have been prejudiced by the admission into evidence of the second call because he took the position at trial that it was “not relevant.” What he specifically stated at the time is, “The material is not relevant for my cross-examination. I’m gonna continue with the exact I was doing.” He was responding to a question from the trial judge about whether he wanted to put the late-disclosed audio recording to the witness.

[57] During the appeal hearing, Mr. Mushamuka explained that what he meant by “not relevant for my cross-examination” was that he had no intention of relying on the second call during his cross-examination, but rather was going to continue questioning Mr. Baker as though the second call did not exist (“I’m gonna continue with the exact I was doing.”) Moreover, Mr. Mushamuka believed the Crown would not be permitted to adduce the second call as evidence because it was not disclosed in a timely way, which is precisely what he had stated at the outset of the trial during the exchange about potential late disclosure of evidence.

[58] The trial judge ought to have corrected Mr. Mushamuka’s misunderstanding. He ought to have informed him that, even if he did not put the late-disclosed audio recording to the witness, the Crown could do so. He also ought to have ensured that Mr. Mushamuka understood that the trial would not proceed as though the second 911 call never happened. Finally, he ought to have adjourned the trial at that point to give Mr. Mushamuka an opportunity to consult counsel and to revisit and adjust his defence strategy.

[59] Trial judges have a duty to help an unrepresented accused to ensure that their fundamental right to a fair trial is respected: R. v. Kahsai , 2023 SCC 20, at para. 54; R. v. Richards , 2017 ONCA 424, at paras. 109-113. Had Mr. Mushamuka been told that the audio recording of the 911 call could be adduced by the Crown during Mr. Baker’s re-examination (despite its delayed disclosure), I am confident that Mr. Mushamuka would have requested, at minimum, an adjournment at that time.

[60] I accept Mr. Mushamuka’s submission that, had the Crown complied with its disclosure obligations prior to the trial, he may well have taken a different approach. He may have made different tactical choices, such as hiring a lawyer and contemplating a guilty plea. This is precisely why the Supreme Court of Canada has held that Crown disclosure should occur before the accused is called upon to elect the mode of trial or to plead. As Sopinka J. noted in R. v. Stinchcombe , [1991] 3 S.C.R. 326, at pp. 342-43, “These are crucial steps which the accused must take which affect his or her rights in a fundamental way. It will be of great assistance to the accused to know what are the strengths and weaknesses of the Crown's case before committing on these issues.” Mr. Mushamuka was denied that opportunity in this case.

[61] When the missing 911 call was located and disclosed mid-trial, Mr. Mushamuka required an adjournment to reassess the strength of the Crown’s case and the viability of his defence strategy. He did not appreciate this. The trial judge had a responsibility to explain it to him.

[62] Instead, Mr. Mushamuka forged ahead with his cross-examination of Mr. Baker on the premise that nothing had changed as a result of the Crown’s late disclosure. It was only later, after he concluded his cross-examination of Mr. Baker, that he learned the late-disclosed 911 call would be admitted as evidence in the trial. At that point, the prejudice to him had become irremediable.

[63] Mr. Mushamuka’s unruly and disruptive behaviour on the second day of the trial is unacceptable and inexcusable, but it should be understood in the context of the unfairness that he was experiencing. A criminal trial must not only be fair in reality, it must also be fair in appearance: R. v. Find , 2001 SCC 32, at para.28. It is obvious from the trial transcript that Mr. Mushamuka perceived egregious unfairness in the manner that the trial judge was dealing with the late-disclosed evidence that gutted his defence strategy.

[64] There is no evidence to support Mr. Mushamuka’s claim that Justice Wendl was biased or prejudiced against him. The trial judge was firm but was also patient with him, despite his inappropriate courtroom behaviour. He treated Mr. Mushamuka respectfully. The trial judge inquired about Mr. Mushamuka’s wellbeing, gave him breaks to compose himself, and took the time throughout the trial to explain procedures to him to ensure that he understood his rights as a self-represented accused. Indeed, Justice Wendl appropriately stood down the proceeding on his own initiative when it appeared that there might be relevant undisclosed evidence. He directed the Crown to locate and produce the missing evidence. Mr. Mushamuka misinterprets this as improper judicial intervention to assist the Crown in bolstering its case. On the contrary, Justice Wendl was protecting Mr. Mushamuka’s right to full disclosure.

[65] However, Justice Wendl erred by failing to take further steps to ensure that the delayed disclosure of material evidence did not undermine trial fairness. When it became apparent that the second 911 call would dismantle the defence theory of the case, the trial judge ought to have explained the implications to Mr. Mushamuka and granted an adjournment to ensure that Mr. Mushamuka had an opportunity to make full answer and defence to the Crown’s case. As a self-represented litigant, Mr. Mushamuka required some guidance, which the trial judge had a duty to furnish.

[66] It is possible that Justice Wendl did not immediately realize, at the moment when the second 911 call was disclosed to Mr. Mushamuka, that it would have such a devastating impact on Mr. Mushamuka’s defence. Justice Wendl had not listened to the call and therefore did not know, at that point, whether it corroborated Mr. Baker’s testimony about the licence plate number.

[67] Looking at the transcript of the trial, it is difficult to ascertain the precise point at which the significance of the second 911 call crystallized for the trial judge, but it could not have been later than when the audio recording of the call was played in court and entered as an Exhibit. By that stage in the trial, Mr. Mushamuka had already concluded his cross-examination of Mr. Baker, and nothing could be done to reverse the approach he had taken to questioning the Crown’s key witness. Trial fairness had been compromised, and a mistrial ought therefore to have been declared. At that point, there was no less extreme remedy that would cure the prejudice to Mr. Mushamuka’s right to make full answer and defence: Burke, at para. 74; R. v. Donnelly , 2023 ONCA 243, at para. 16. It was too late for an adjournment.

[68] I am mindful that a mistrial is a remedy of last resort. It should only be granted if there is no other means of preventing a miscarriage of justice: R. v. Burke , 2002 SCC 55, at para. 75. The determination of whether a mistrial should be granted is a matter within the discretion of the trial judge. As with other discretionary decisions, an appellate court should not interfere with the decision of the trial judge except where the court concludes it is clearly wrong: R. v. Chiasson , 2009 ONCA 789, at para. 14.

[69] In this case, Justice Wendl was clearly wrong when he failed to recognize that there was prejudice to the accused. After the late-disclosed 911 call was admitted as evidence, he dismissed Mr. Mushamuka’s request for a stay of proceedings out of hand and did not even consider whether a mistrial was appropriate. Although Mr. Mushamuka did not specifically request a mistrial, he was self-represented and therefore would not necessarily have known that it was an available remedy. Justice Wendl ought to have provided guidance to him in that regard.

[70] For the above reasons, I conclude that the conviction entered against Mr. Mushamuka cannot stand because he was deprived of his right to a fair trial.

Should the proceedings be stayed?

[71] Mr. Mushamuka argues that I should stay the proceeding rather than order a new trial because he has already served his sentence, including the 30-day jail term, 3-year driving prohibition, and 2-year period of probation. Those factors should be taken into consideration by the Crown when it decides whether to pursue a new trial, but they do not constitute a basis upon which to stay the proceeding.

[72] However, there was an extended delay in sentencing Mr. Mushamuka, which may be grounds for a stay of proceedings if it violated his constitutional rights under s.11(b) of the Charter. I will therefore review the facts relating to the delay and determine whether there are grounds to order a stay.

Delay in Sentencing

[73] After Justice Wendl issued his decision on August 20, 2020, convicting Mr. Mushamuka of an offence, the Crown was prepared to proceed immediately to sentencing submissions, but Mr. Meehan suggested an adjournment to permit determination of the outcome of the appeal filed by Mr. Mushamuka in respect of his prior conviction for impaired driving. Mr. Meehan explained that he was making this request because s.320.19(1)(b)(ii) of the Criminal Code imposes a mandatory minimum sentence of 30 days imprisonment for a second offence under s.320.14(1). Subsection 320.24(2) also imposes enhanced mandatory minimum periods of driving prohibition for second and subsequent offences under s.320.14(1).

[74] Mr. Meehan reminded the trial judge that the delay to-date in the case was “exactly 18 months,” underscoring the fact that the trial had been concluded just within the presumptive 18-month ceiling imposed by the Supreme Court of Canada for trials conducted in provincial court: R. v. Jordan , 2016 SCC 27, at para. 49. He then expressed his belief that there is a separate presumptive ceiling for dealing with sentencing within a reasonable time, which Justice Wendl confirmed is 5 months.

[75] Mr. Meehan stated that the Crown was proposing an adjournment because it inured to the benefit of the accused. He did not request that Mr. Mushamuka waive his right to be sentenced within a reasonable time because it was unlikely that a self-represented person could give an informed waiver of his constitutional right.

[76] Mr. Mushamuka advised the Court that his appeal (in the other case) was scheduled to be heard on September 15, 2020. He did not object to the proposed adjournment. Justice Wendl adjourned the sentencing hearing to September 30, 2020, a period of 6 weeks.

[77] The sentencing hearing was later adjourned again to December 3, 2020. I have no record of the reason for this additional two-month delay because no transcripts are available from the September 30, 2020 court appearance. However, it is apparent from the record that Mr. Mushamuka’s appeal of his prior conviction had not been perfected by September 30, 2020. I infer that was the reason for the further adjournment.

[78] The appeal was still not perfected when the parties next appeared before Justice Wendl on December 3, 2020. Sentencing submissions proceeded. Mr. Mushamuka requested that Justice Wendl recuse himself from determining sentence based on a reasonable apprehension of bias. Justice Wendl heard submissions on that issue, as well as on issues pertaining to the determination of an appropriate sentence.

[79] The Crown sought a sentence of imprisonment of 30 days, in addition to a driving prohibition. Mr. Mushamuka challenged the constitutional validity of the statutory mandatory 30-day minimum sentence for a second offence. The matter was adjourned to January 22, 2021 to hear submissions relating to the constitutional issue.

[80] Endorsements on the Information indicate that the matter returned before Justice Wendl on January 22, 2021 and February 24, 2021, but no transcripts are available (in the appeal record) from those dates. Justice Wendl reserved his decision. Sentence was ultimately imposed on April 21, 2021, two years and two months after the charge was laid, and eight months after Mr. Mushamuka was convicted.

Conclusion Regarding Stay of Proceedings

[81] Subsection 11(b) of the Charter guarantees every accused person a right to be “tried within a reasonable time.” This applies to both the pre-verdict and post-verdict (sentencing) phases of a criminal proceeding: R. v. MacDougall , [1998] 3 SCR 45.

[82] The Court of Appeal for Ontario has ruled that a delay of more than five months between conviction and sentencing is presumptively unreasonable, regardless of the length of the proceeding prior to the verdict. This five-month ceiling applies in both provincial court and Superior Court: R. v. Charley , 2019 ONCA 726. When a court takes longer than five months to sentence a convicted person, the Crown must rebut the presumption of unreasonableness with evidence to prove that the delay was reasonable in the circumstances of the case.

[83] As set out above, eight months elapsed in this case between the date of Mr. Mushamuka’s conviction (August 20, 2020) and the day he was sentenced (April 21, 2021). However, three and a half months should be deducted from that period of delay because it was caused by Mr. Mushamuka’s failure to perfect his appeal in his other case, during which time his sentencing in this case was postponed to provide him with the potential benefit of not having a mandatory minimum jail term apply. The net delay was therefore four and a half months, which falls below the five-month ceiling. Consequently, Mr. Mushamuka bears the onus of proving that the four-and-a-half month delay was unreasonable.

[84] Given the issues raised by Mr. Mushamuka during the sentencing hearing (i.e., a motion for recusal and a Charter challenge to the mandatory minimum sentence), I find that the net delay in this case was reasonable.

[85] I conclude that there was no violation of Mr. Mushamuka’s right to be sentenced within a reasonable time. There is therefore no basis to stay the proceedings.

Result

[86] For the above reasons, I grant the appeal but dismiss Mr. Mushamuka’s application for a stay of proceedings. The conviction is quashed, and the matter is remitted to provincial court for a new trial.

Petersen J. Released: May 6, 2024