COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2016 ONCA 684

DATE: 20160916

DOCKET: C58688 and C58822

Hoy A.C.J.O., Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyrone Chambers and Joshua Warner

Appellants

Richard Litkowski, for the appellant Tyrone Chambers

Delmar Doucette, for the appellant Joshua Warner

Christine Bartlett-Hughes,
    for the respondent

Heard:  June 14, 2016

On appeal from the convictions entered by Justice James
    A. Ramsay of the Superior Court of Justice, sitting with a jury, on November
    15, 2013, and the sentence imposed on December 29, 2013.

Hoy A.C.J.O.:

1.       OVERVIEW

[1]

The appellants, Joshua Warner and Tyrone Chambers, attended a house
    party each armed with a loaded handgun. During a confrontation with other
    guests, Chambers and then Warner drew his gun. Three people were shot.
    Tragically, Brandon Musgrave was killed by a shot to his head. Ted Tsibu-Darkoh
    and Kauner Chinambu were wounded.

[2]

The appellants were charged with second degree murder and two counts of
    aggravated assault. Warner, through counsel, admitted that he shot and wounded
    Tsibu-Darkoh and thus was guilty of aggravated assault of him. The key issues
    at trial were which of Warner and Chambers had actually shot Musgrave and
    Chinambu, and whether the non-shooter was also guilty as an aider or abettor.

[3]

The jury found both Warner and Chambers guilty of second degree murder
    of Musgrave and aggravated assaults of Tsibu-Darkoh and Chinambu.

[4]

Warner appeals his convictions for the murder of Musgrave and aggravated
    assault of Chinambu. Chambers appeals his convictions on all counts. The
    appellants have raised a number of issues on their appeal. I would give effect
    to the following grounds:

I.

The trial judge misdirected the jury on the
mens rea

for
    aiding and abetting murder.

II.

The trial judge erred by failing to leave manslaughter as a lesser
    included offence to the murder charges in the case of the aider or abettor.

III.

The trial judge improperly instructed the jury on the use of the
    appellants post-offence conduct.

[5]

It is not necessary to address the remaining issues raised by the
    appellants.

2.       BACKGROUND

[6]

As I would order a new trial, I will provide only a brief summary of the
    pertinent evidence.

[7]

The shooting happened at a cover-charge house party, which began during
    the evening of March 12, 2010, in Hamilton, Ontario. The party was hosted by
    several students at Columbia International College (CIC) and most of the
    guests were CIC students. However, the party had been advertised on Facebook
    and was open to the public.

[8]

Warner and Chambers went to the party together. They were not students
    at CIC. Chambers testified that he had known Warner for almost ten years but
    said that they were not close friends.

[9]

Both Chambers and Warner were carrying loaded handguns. Both were
    subject to firearms prohibitions.

[10]

Around 1:00 a.m. on March 13, Chambers got into an argument with Wesley
    Adi, who was playing music from his iPod into the speaker system. Chambers
    asked Adi to change the music but Adi declined. The argument escalated and
    Chambers suggested that they take it outside.

[11]

One of the hosts, Yussuf Yanni, testified that he intervened in the
    argument and tried to make Chambers leave the house. Chambers told Yanni to
    shut up, which caused him to challenge Chambers as to his authority to tell
    Yanni what to do.

[12]

Chambers pulled out something covered in a black sock which, according
    to several witnesses, he gripped like a gun. Some witnesses described Chambers
    saying I could end this fucking party right now. Adi testified that Yanni
    then challenged Chambers to shoot him.

[13]

Tsibu-Darkoh testified that Warner was standing beside Chambers as this
    was unfolding. Another witness said that Warner moved over to Chambers side
    during the argument.

[14]

Warner pulled out his gun shortly after Chambers.

[15]

By then, Chambers, Warner, Musgrave, Tsibu-Darkoh, Chinambu, and several
    other guests were in or at the threshold of the kitchen. Chambers gave Chinambu
    a harsh look and, in response, Chinambu challenged Chambers verbally. Chinambu
    leaned off the kitchen counter, planning to make a move.

[16]

Three shots were fired in the kitchen. Chinambu was shot in the chest
    and Musgrave in the head. The shot that hit Musgrave was fatal. The third shot
    hit Tsibu-Darkoh in the arm.

[17]

The forensic evidence confirmed that all three victims were shot by
    .22-calibre Sniper Subsonic bullets. A firearms expert who testified at trial
    could not say if all three bullets had been fired from the same gun. Chambers
    claimed that he was carrying a .380-calibre weapon on the night of the party.
    He also testified that Warner had a .22-calibre weapon and that Chambers had
    given him bullets for that weapon a couple of weeks before the shooting.

[18]

Chambers and Warner fled together. Chambers testified that he hid his
    gun in a bush at the side of a house on the south side of Canada Street. He did
    not know what Warner did with his gun.

[19]

Chambers and Warner parted ways at a GO Station.

[20]

Chambers brother picked him up in a cab and they went to Chambers
    brothers hang out spot, where Chambers spent the night. According to
    Chambers, he told his brother that he had gotten into an argument at a party
    and that Warner had just turned around and started shooting everybody.

[21]

Chambers spent the next two nights at the residence he shared with his
    girlfriend. During that period, he learned from Warner that one of the persons
    shot was unlikely to survive. According to Chambers, during that period he also
    spoke to a lawyer in Toronto, whom he found on the Internet but whose name he
    could not remember. Chambers testified that the lawyer told him that he would
    not be able to clear his name even though Chambers told him that he had not
    done anything. Chambers fled to Halifax, where he was arrested in April 2010.

[22]

After parting ways with Chambers, Warner left the GO Station and waited
    for his regular cabbie to pick him up and take him to his grandmothers house.
    He lay in the back seat of the cab. At first he told the cabbie that he was
    tired but later he said to the cabbie that he did not want the police to see
    him. The cabbie had heard about the shooting at the party and asked Warner if
    he had been involved. Warner told the cabbie that Chambers was the shooter but
    that he was worried because he had been with Chambers at the time.

[23]

Warner fled to Guyana. He was arrested there and returned to Canada in April
    2011.

[24]

About a month after the shooting, someone found a .22-calibre revolver
    near a house on Canada Street. Chambers testified that this was not the handgun
    he was carrying. He also claimed that the gun recovered from Canada Street
    looked like a gun Warner owned and had shown him a few weeks before the
    shooting.

3.       THE TRIAL

[25]

Warner and Chambers were charged with second degree murder of Musgrave
    and aggravated assaults on Tsibu-Darkoh and Chinambu. They were tried together.
    The trial lasted 24 days.

[26]

Most of the witnesses were not able to say who shot the three victims.
    However, Chambers testified and said that he did not fire any shots and did not
    know that Warner had a gun with him. Chambers said he drew his gun to defend
    himself against a crowd of people aggressively gathering around him.

[27]

Warner did not testify. However, in his closing address to the jury,
    Warners counsel conceded that Warner had shot Tsibu-Darkoh.

[28]

The jury deliberated for approximately 16 hours over two days before
    returning a verdict. Both appellants were found guilty on all counts.

4.       INSTRUCTIONS ON
MENS REA
FOR AIDING AND ABETTING

[29]

The appellants argue that the trial judge failed to properly instruct
    the jury with respect to the essential elements for aiding and abetting in an
    offence. In particular, they submit that he failed to instruct the jury that
    the appellants had to know that the principal offender intended to murder
    Musgrave to be found guilty as an aider or abettor on the murder charge.

[30]

During oral submissions, counsel for Warner and Chambers also submitted
    that the trial judge misdirected the jury on the essential elements of
    liability as an aider or abettor to an aggravated assault.

[31]

The Crown rejects these submissions and argues that the trial judges
    instructions were sufficient when considered in light of the evidence in this
    case. However, the Crown concedes that if the trial judges instructions on the
    knowledge requirement were deficient then the curative proviso cannot be
    applied.

[32]

I agree with the appellants that the trial judge misdirected the jury on
    the knowledge component of aiding and abetting the commission of a murder.
    However, I conclude that the instructions were sufficient in respect of aiding
    and abetting aggravated assault.

[33]

To explain my conclusions, I will first discuss the elements of aiding
    and abetting the commission of an offence. Then I will summarize the relevant
    portions of the trial judges charge. Finally I will provide my reasons for
    concluding that the instructions were insufficient for the murder charges but
    were adequate for the aggravated assault charges.

4.1.    Elements of Aiding and Abetting an Offence

[34]

Under s. 21(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, a
    person may be found guilty as a party to an offence if he or she (a) actually
    committed it; (b) did or omitted to do anything for the purpose of aiding any
    person to commit it; or (c) abetted any person in committing it. An aider or
    abettor is just as culpable as a principal offender for purposes of imposing
    criminal liability:
R. v. Maciel
, 2007 ONCA 196, 219 C.C.C. (3d) 516,
    at para. 85.

[35]

However, the
actus reus
and
mens rea
for aiding and
    abetting are distinct from those of the principal offence. The elements for
    aiding and abetting were defined by the Supreme Court in
R. v. Briscoe
,
    2010 SCC 13, [2010] 1 S.C.R. 411, and by this court in
Maciel
and
R.
    v. Helsdon
, 2007 ONCA 54, 84 O.R. (3d) 544.

[36]

The
actus reu
s of aiding or abetting is doing (or, in some
    circumstances, omitting to do) something that assists or encourages the
    perpetrator to commit the offence:
Briscoe
, at para. 14.

[37]

The
mens rea
of aiding and abetting has two elements: intent
    and knowledge. To be found liable as an aider or abettor, an accused must have
    intended to assist or encourage the perpetrator to commit the crime:
Briscoe
,
    at para. 16;
Maciel
, at para. 87;
Helsdon
, at para. 43.

[38]

An accused can only intend to assist or encourage in the commission of a
    crime if she knows which crime the perpetrator intends to commit. Therefore,
    the Crown must prove that an alleged aider or abettor knew that the perpetrator
    intended to commit the crime, although she need not know precisely how it will
    be committed:
Briscoe
, at para. 17;
Maciel
, at para. 89.

[39]

Where an accused has been charged with having aided or abetted in the
    commission of a murder, the Crown must prove that she knew that the perpetrator
    had the intent required for murder:
Maciel
, at para. 88.  In
Briscoe
,
    at para. 18, the Supreme Court clarified that an aider or abettor does not need
    to have the
mens rea
for murder personally.

4.2.    The Trial Judges Charge on Aiding and Abetting

[40]

It was not disputed that whoever shot Musgrave was guilty of murder, and
    the trial judge instructed the jury accordingly.

[41]

The trial judge initially agreed with counsel for Warner and Chambers
    that there was no basis for leaving with the jury the possibility of finding
    whoever of Warner or Chambers did not shoot liable as an aider or abettor.
    However, the afternoon before he delivered his charge, he advised counsel that
    he had changed his mind. In a brief exchange, Chambers counsel reminded the
    trial judge that the aider or abettor must have knowledge of the principals
    intention, and that there were two separate intentions in play: to commit
    murder and to commit an aggravated assault.

[42]

It is unclear whether the trial judge provided a copy of his charge to
    counsel in advance of charging the jury.

[43]

The trial judge first addressed the elements of aiding an offence. He
    explained that an aider must do something for the purpose of helping another
    commit the specific offence and must do so meaning to help the principal
    offender. Then he turned to the knowledge requirement:

The aider would have to know that the shooter intended to
    shoot. In addition, to be guilty of murder as an aider, he would have to have
    the required state of mind for murder that I have already told you about. If he
    was only intending to help the shooter keep the crowd at bay, not knowing that
    the shooter would actually shoot, the other accused would not be guilty as an
    aider.

[44]

The abetting portion of the charge focused on Chambers. The trial judge
    explained that an abettor must do something for the purpose of encouraging
    another to commit the specific offence charged. Then he added the following:

For anyone to be guilty of murder as an abetter he must in
    addition have the state of mind required for murder which I have set out
    already. His act must be meant to encourage, and it must be meant to encourage
    the specific offence. If you find that Mr. Chambers pulled out his gun and said
    I can end this party right now, and that he intended by that to encourage Mr.
    Warner to shoot anybody who makes a move, and Mr. Warner did just that,
    Chambers would be guilty as an abetter. If he did not mean to convey that
    message, or he did not know that Warner would actually shoot, Chambers would
    not be guilty as an abetter.

[45]

After the trial judge completed his charge to the jury, counsel for
    Chambers and Warner objected to the charge on aiding and abetting. Among other
    things, Chambers counsel argued that there was no evidence that Chambers
    shared Warners intent to kill Musgrave or knew of that intent. Warners
    counsel adopted Chambers counsels submissions and requested that
    clarification be given to the jury with respect to what is constituted by a
    shared intention for murder.

[46]

The trial judge recalled the jury and instructed them as follows:

I just want to make it clear, Ive told you that a person can
    commit an offence in one of three ways: one, as a principal, I didnt use that
    word, the person who shot someone and hit some one is guilty as a principal;
    or, a person can guilty as an aider; or, a person could be guilty as an
    abetter, which means that on, there could be more than one person guilty on any
    count, but there could only be one person guilty as a principal on any count,
    right? Okay? All right.

[47]

He declined to otherwise clarify his charge on aiding and abetting.

4.3.    Trial Judge Misdirected the Jury on the Knowledge
    Component of Aiding or Abetting Murder

[48]

I agree with the appellants that the trial judge misdirected the jury on
    the knowledge component of the
mens rea
for aiding or abetting murder.

[49]

In the case of aiding, the trial judge directed only that the aider
    would have to know that the shooter intended to shoot. In addition, to be
    guilty of murder as an aider, he would have to have the required state of mind
    for murder that I have already told you about.

[50]

Similarly, in the abetting portion of the charge, the trial judge
    instructed the jury that if Chambers actions were intended to encourage Warner
    to shoot and Chambers knew that Warner would actually shoot anybody who made a
    move then Chambers would be guilty as an abettor. The trial judge did not
    direct the jury that Chambers must have known that Warner had the intent
    required for murder.

[51]

Telling the jury that an aider or abettor needed to know that the
    principal offender intended to shoot was not enough. As noted above, in the
    case of murder, the Crown must prove that the aider or abettor knew that the
    perpetrator had the intent required for murder.

[52]

The trial judge compounded this error by telling the jury that any aider
    or abettor must himself have the intent required for murder. However, that set
    the jury down the wrong path. The jury would have understood that they were to
    consider whether the aider or abettor himself had the intent required for
    murder, and not whether the aider or abettor knew that the principal had the
    intent required for murder.

[53]

The Crown argues that the charge was functionally sufficient. It submits
    that, in this case, any aider or abettor must at least have been wilfully blind
    to the principals intent to commit murder if he knew that the principal
    intended to shoot.

[54]

I would reject this assertion.

[55]

The doctrine of wilful blindness will impute knowledge to an accused
    whose suspicions are aroused to the point where she sees the need for further
    inquiries, but deliberately chooses not to make those inquiries:
Briscoe
,
    at para. 21. Wilful blindness requires more than a failure to inquire and is
    closer to deliberate ignorance:
Briscoe
, at para. 24.

[56]

On these facts, it is not a given that an aider or abettor who knew that
    the accused was going to shoot should be imputed with knowledge that the
    shooter had the intent to commit murder. The evidence suggests that the
    altercation leading up to the shooting happened over a short period of time.
    There was no direct evidence suggesting that either accused knew what the other
    was going to do. On these facts, a jury could have had a reasonable doubt on
    whether either accused knew of the others intent to commit murder, even if
    that accused knew of the others intent to shoot.

[57]

In my view, these errors require that Warner and Chambers convictions
    for the murder of Musgrave be quashed.

4.4.    Instructions on Aiding and Abetting Aggravated Assault
    were

Sufficient

[58]

While the trial judges instructions were not sufficient for the murder
    charges, I conclude that they adequately conveyed the requirements for aiding
    or abetting an aggravated assault.

[59]

The essential elements of aggravated assault are well established.
Watts
    Manual of Criminal Jury Instructions
, 2d ed. (Toronto: Thomson Carswell,
    2015) provides a helpful summary at pp. 816-17. The Crown is required to prove
    the following: (i) the accused intentionally applied force to the complainant;
    (ii) the complainant did not consent to the force applied by the accused; (iii)
    the accused knew that the complainant did not consent to the force being
    applied; and (iv) the force applied wounded, maimed, disfigured, or endangered
    the life of the complainant.

[60]

In this case, the undisputed evidence was that Chinambu had been wounded
    by a shot fired by Warner or Chambers. Furthermore, Warner, through his
    counsel, admitted that he had shot Tsibu-Darkoh.

[61]

Read in context, the jury was directed that anyone aiding or abetting
    an aggravated assault must know that the shooter intended to shoot someone and
    would actually shoot, and the aider or abettor did something for the purpose of
    helping the shooter do so. Concluding that either accused knew of the others
    intent to shoot is to conclude that he knew of the others intent to apply
    force. In the circumstances here, there was no question that the two victims
    did not consent to the application of force and were wounded as a result of the
    application of force.

[62]

Therefore, while knowledge that the principal offender intended to shoot
    is not knowledge that the principal had the intent required for murder, in my
    view, in these circumstances it is knowledge that the principal intended to
    commit the offence of aggravated assault.

5.       FAILURE TO LEAVE MANSLAUGHTER AS A
    LESSER INCLUDED
OFFENCE FOR AIDING AND ABETTING MURDER

[63]

The appellants concede that the shooter was guilty of murder because his
    actions entailed at least the secondary intent for murder, namely that he meant
    to cause Musgrave bodily harm that he knew was likely to cause his death and
    was reckless whether death ensued or not. However, they submit that it does not
    follow that the non-shooter was necessarily aware of the shooters murderous
    intent. Therefore, they submit, the trial judge should have instructed the jury
    that they could convict the appellants on the lesser included offence of aiding
    and abetting manslaughter instead.

[64]

The Crown rejects this submission. It argues that there was no air of
    reality to a verdict of manslaughter. The Crown notes that trial counsel did
    not request an instruction including manslaughter as an available verdict. Even
    if failing to instruct the jury on this verdict was an error, the Crown submits
    that it did not result in a substantial wrong or miscarriage of justice and so
    the curative proviso should be applied.

[65]

I agree with the appellants that the trial judge erred by failing to
    leave manslaughter with the jury as a lesser included offence to the murder
    charges in the case of the aider or abettor.

[66]

A party to an offence may be found guilty of either a more or a less
    serious offence than the principal. It is open to a jury to find an accused
    guilty of the lesser included offence of manslaughter where she aided or
    abetted a principal who is found guilty of murder:
R. v. Kirkness
,
    [1990] 3 S.C.R. 74, at pp. 88 and 96-97;
R. v. Jackson
, [1993] 4
    S.C.R. 573, at pp. 581-83. A person who aids or abets another person in the
    offence of murder may be convicted of manslaughter where a reasonable person in
    all the circumstances would have appreciated that bodily harm was the
    foreseeable consequence of the dangerous act that was being undertaken by the
    murderer:
Jackson
, at p. 583.
[1]

[67]

In a murder case, a trial judge must instruct a jury on the possibility
    of a conviction on the included offence of manslaughter if, on all the
    evidence, there is an air of reality to a finding that the Crown has not proven
    beyond a reasonable doubt that the killer had either of the requisite intents
    required for murder:
R. v. Babinski
(2005), 193 C.C.C. (3d) 172 (Ont.
    C.A.), at para. 45;
R. v. Aalders
, [1993] 2 S.C.R. 482, at p. 504.

[68]

Similarly, where the Crown argues that an accused aided or abetted a
    murder and there is an air of reality to a finding that the Crown has not
    proven beyond a reasonable doubt that the aider or abettor knew that the killer
    had the requisite intent for murder, the trial judge must instruct the jury on
    the possibility of a conviction of the aider or abettor on the included offence
    of manslaughter.

[69]

There was no direct evidence as to whether the aider or abettor knew
    that the perpetrator had the intent for murder. The shootings followed an
    argument, and there was no suggestion that they were planned. It is possible
    that Warner pulled out his gun to help out Chambers, not knowing that Chambers
    had a murderous intent. Similarly, it is possible that by pulling out his gun
    and saying I can end this party right now, Chambers encouraged Warner to
    shoot without knowing that Warner had a murderous intent. Therefore, there was
    an air of reality to a finding that the Crown had not proven beyond a
    reasonable doubt that the aider or abettor, as the case may be, knew that the
    principal had the intent for murder.

[70]

As noted, the Crown relies on the fact that the appellants counsel did
    not request that the jury be instructed on the possibility that the appellants
    could be convicted of manslaughter instead of murder. Although counsels
    position at trial is a relevant consideration for an appellate court reviewing
    a jury charge, trial counsels failure to object or request a particular
    instruction is not determinative. A legal error remains a legal error
    irrespective of trial counsels position:
R. v. Polimac
, 2010 ONCA
    346, 254 C.C.C. (3d) 359, at para. 97. Therefore, even though the appellants
    counsel did not ask for the instruction, the failure to instruct the jury on
    this lesser included offence was an error.

[71]

As I would set aside the murder convictions on other grounds, it is not
    necessary to address in detail the Crowns submission that the curative proviso
    should be applied. However, I note that failing to instruct a jury on the
    possibility of conviction on a lesser included offence will in most
    circumstances constitute reversible error:
R. v. Sarrazin
, 2011 SCC
    54, [2011] 3 S.C.R. 505, at para. 31. In my view, this is not one of those rare
    cases where the curative proviso could be applied despite a failure to leave a
    verdict on a lesser included offence with the jury.

6.       ERROR IN JURY INSTRUCTIONS REGARDING THE USE OF EVIDENCE OF
    POST-OFFENCE CONDUCT

[72]

Both appellants attack the trial judges instructions to the jury on how
    it could use evidence of the appellants conduct after the shooting. Warners
    primary argument is that, because he had admitted to assaulting Tsibu-Darkoh,
    the trial judge should have instructed the jury that it could not use Warners
    post-offence conduct to draw an inference that he was guilty of committing an
    aggravated assault on Chinambu or murdering Musgrave.

[73]

Chambers similarly argues that the jury should have been instructed that
    it could not use his post-offence conduct to draw an inference of guilt because
    his conduct was explained by the fact that he knew that he had violated his
    firearms prohibition order. In the alternative, he argues that the trial judge
    erred in the manner in which he instructed the jury with respect to
    post-offence conduct.

[74]

The Crown rejects these submissions. It argues that the trial judges
    instructions told the jury to consider the post-offence conduct to determine if
    the appellants conduct was consistent with the state of mind of a person who
    had taken part in a shooting. If the jury had followed the instructions
    given, then it would not have used the evidence against Warner as he had
    already admitted to having taken part in a shooting by assaulting Tsibu-Darkoh.
    Furthermore, as Chambers had not admitted to any of the offences he was charged
    with, the inferences left with the jury were permissible ones in the case of
    Chambers. Therefore, the Crown argues that the trial judges instructions do
    not justify appellate intervention. The Crown does not argue that the curative
    proviso could be applied if the trial judge committed the errors alleged by the
    appellants.

[75]

As I will explain, I agree with Warner that the trial judge was required
    to instruct the jury that some of the evidence of Warners post-offence conduct
    namely, the evidence of his flight to Guyana  had no probative value. I
    also agree that the trial judges instructions to the jury regarding
    post-offence conduct were otherwise inadequate. In my view, the curative
    proviso cannot be applied to these errors.

6.1.    The Law Regarding Post-Offence Conduct Evidence

[76]

The term post-offence conduct evidence, which is sometimes called
    after-the-fact conduct evidence, refers to evidence of acts or omissions of the
    accused occurring after the commission of an alleged offence. It is
    circumstantial evidence that a jury may use, when considering the charges
    against an accused, if and to the extent that it is relevant to a live issue:
R.
    v. White
, [1998] 2 S.C.R. 72 (
White #1
), at para. 21; see also
R.
    v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433 (
White #2
), at
    paras. 22 and 31.

[77]

At the same time, the jurisprudence recognizes that post-offence conduct
    evidence is a special brand of circumstantial evidence that carries a
    heightened risk of misapplication and prejudice and that the relevance and available
    uses of such evidence are not always matters of common sense: David M.
    Paciocco, Simply Complex: Applying the Law of Post-Offence Conduct Evidence
    (2016) 63 C.L.Q. 275, at p. 277;
R. v. Rodgerson
, 2015 SCC 38, [2015]
    2 S.C.R. 760, at para. 31. In some cases, trial judges will be obliged to
    deliver cautions and limiting instructions that are not generally required
    for other forms of circumstantial evidence: Paciocco, at p. 277.

[78]

In
White #2
, at para. 31, Rothstein J. explained that the rules
    governing the need for and scope of limiting instructions are those that govern
    the admissibility of circumstantial evidence in general: is the evidence
    relevant to a live issue; is the evidence subject to any specific exclusionary
    rules (for example, the hearsay rule); and should the evidence be excluded
    under a recognized judicial discretion?

[79]

Laskin J.A. explained how to determine the relevance and permissible
    use, if any, of post-offence conduct evidence in
R. v. Angelis
, 2013
    ONCA 70, 296 C.C.C. (3d) 143, at para. 55:

Post-offence conduct, therefore, is not subject to blanket
    rules. It is circumstantial evidence whose probative value depends on the
    nature of the evidence, the issue at trial and the positions of the parties.
    Thus, we do not automatically label certain kinds of post-offence conduct as
    always or never relevant to a particular issue. Rather, we must consider all
    the circumstances of a case to determine whether the post-offence conduct is
    probative and, if so, what use the jury may properly make of it. In the words
    of Rothstein J. in [
White #2
], the overriding question is this: what
    do logic and human experience suggest that a jury can legitimately or
    rationally infer from the accuseds post-offence conduct?

[80]

In some cases, the post-offence conduct will have no probative value
    because it is not relevant to any live issue; in such cases, a trial judge must
    deliver a blanket no probative value instruction informing the jury that they
    should not consider the post-offence conduct. For instance, in
R.  v.
    Arcangioli
, [1994] 1 S.C.R. 129, the accused was charged with aggravated
    assault for having allegedly stabbed someone. He admitted to having punched the
    victim several times before he fled from the scene. The trial judge permitted
    the jury to consider the post-offence conduct of flight as evidence on the
    aggravated assault charge, but the Supreme Court concluded that was an error.
    Because the accused had admitted culpability in respect of one offence
    (assault) and the evidence could not logically support an inference of guilt
    with respect to another offence he was charged with, the evidence of the
    appellants flight had no probative value and the jury could make no use of
    it.

[81]

In some instances, however, evidence of post-offence conduct can logically
    support an inference of guilt with respect to one offence rather than another.
    As the Supreme Court explains in
White #1
, at para. 32:

It is possible to imagine cases in which evidence of
    post-offence conduct could logically support a distinction between two levels
    of culpability for a single act, or between two offences arising from the same
    set of facts. By way of illustration, where the extent of the accuseds flight
    or concealment is out of all proportion to the level of culpability admitted,
    it might be found to more consistent with the offence charged.

[82]

And post-offence conduct may be probative of one live issue, but not of
    another. For example, flight
per se
may be relevant in determining the
    identity of the assailant, but may not be relevant in determining the
    assailants level of culpability, as between manslaughter and murder. In that
    circumstance, the judge must give a limiting instruction as to the appropriate
    and inappropriate inferences to be drawn from the evidence:
White #2
,
    at para. 39. A trial judges failure to instruct a jury on the limited use of
    or inferences available from the post-offence conduct evidence may constitute
    reversible error: see, for example,
Rodgerson
.

6.2.    The Trial Judges Charge Regarding Post-Offence
    Conduct

[83]

The trial judge recounted some of the evidence of Warner and Chambers
    conduct after the shooting. In particular, he noted the following:

·

Warner and Chambers left right after the shooting.

·

According to A.B., the first man out dropped a gun and told the
    other one to pick it up, which the second person did.

·

Nicole Hamilton testified that after the popping noises the man
    who didnt like the music dropped a gun and then picked it up. Chambers agreed
    that he dropped the gun and picked it up. He testified that his .380 was dull
    silver. Nicole said that the gun that was dropped was silver with black.

·

After he was picked up by his regular cabbie, Warner lay down on
    the back seat. He was concerned about the incident at the party. After reading
    a report about the incident, he told the cabbie that he was upset not because
    he was involved, but because he was with Chambers, who was involved.

·

Warner was arrested in Guyana.

·

Chambers walked to the residence he shared with his girlfriend
    and stayed there a few nights. Then he went to Halifax.

·

Neither appellant called the police to say that he had witnessed
    a shooting and that he knew who did it, nor to tell them that there were
    firearms lying around in peoples gardens on Canada Street.

·

Neither appellant stayed to get medical help for Musgrave.

[84]

Then the trial judge instructed the jury on how they could use this
    post-offence conduct:

You can take this conduct after the fact into account as a
    piece of circumstantial evidence of the respective states of mind of each
    accused if you think that it is more consistent with the way someone would act
    who had taken part in a shooting. You must also consider any explanation for
    this conduct. The conduct can only be circumstantial evidence of guilt if you
    reject the explanation.

[85]

Finally, the trial judge summarized the appellants explanations for
    their conduct, as follows:

Mr. Chambers explanation is that he spoke to a lawyer that he
    found on Google and the lawyer told him that he would be arrested if he went to
    the police.  With his previous conviction and prohibition order, he thought he
    was looking at several years in prison just for having had a gun.  He was told
    that he could not clear his name without being arrested.  He did not think
    about clearing his name by giving the police his .380 to prove that he was not
    the person who shot these people with a .22, although he thought about going to
    the police because his heart dropped when Mr. Warner told him that one of the
    men was not expected to make it.  In the end he thought it best to lie low
    until Mr. Warner got caught.

Mr. Warners explanation, as given to [his cabbie], is that he
    thought he was in trouble for being with the person who committed the offence.

6.3.    Some Inferences Were Available from Certain Aspects of
    the Post-Offence Conduct

[86]

Before explaining how the trial judge erred in his instruction to the
    jury regarding the use of evidence of post-offence conduct, I wish to make
    clear that some inferences could legitimately and rationally be drawn from
    certain aspects of Warners and Chambers post-offence conduct. Some of the
    evidence of post-offence conduct was relevant to some of the issues before the
    jury.

[87]

In my view, logic and human experience suggest that a jury could
    legitimately and reasonably infer from the fact that Warner and Chambers fled
    the party together, and remained together until they parted company at the GO
    Station, that Warner and Chambers participated together in the shootings. And
    this, in turn, is relevant to whether Warner or Chambers was liable as an aider
    or abettor to aggravated assault or murder. However, it would have had to have
    been made clear to the jury that other inferences were also available to them
    from this evidence. Both Warner and Chambers were subject to firearms
    prohibitions and had openly brandished firearms.  A jury could also conclude
    that they fled together, immediately after the shots were fired, simply because
    they were friends who came to the party together and both were in trouble,
    although to different degrees.

[88]

Also, if the jury accepted A.B.s evidence that the the first man out
    dropped a gun and told the other one to pick it up then that evidence may be
    probative of whether the non-shooter aided or abetted the shooter. And it may
    be that, if accepted by the jury, Hamiltons evidence of who dropped the gun
    and what that gun looked like was relevant to the identity of the shooter.

[89]

I reject Chambers argument that a jury could not legitimately and
    rationally infer that Chambers had participated in one or more of the shootings
    because of his flight to Halifax. Unlike Warner, Chambers did not admit to any
    of the offences he was charged with. He relied on the fact that he was subject
    to a firearms prohibition at the time of the offences to explain his flight. It
    is not necessarily true that Chambers post-offence flight to Halifax is
    equally consistent with someone fleeing because he had violated a firearms
    prohibition and someone fleeing because he had participated in a shooting. On
    this record, it may be open to the jury to conclude as a matter of logic and
    human experience that Chambers post-offence flight to Halifax is consistent
    with someone participating in a shooting and not just someone fleeing because
    he had violated his firearms prohibition. It is for the jury to decide- on a
    proper instruction- which available inference to accept.

6.4 How the Trial Judge Erred in His Instruction to the Jury

[90]

As indicated above, the trial judge simply instructed the jury that they
    could take Warners and Chambers post-offence conduct into account as a piece
    of circumstantial evidence of the respective states of mind of each accused if
    you think that is more consistent with the way someone would act who had taken
    part in a shooting. Then he said that the conduct could be circumstantial evidence
    of guilt.

[91]

The trial judge treated the evidence of post-offence conduct as an
    amorphous whole. He failed to instruct the jury as to what inferences were (and
    were not) available from the various portions of the evidence of the
    post-offence conduct and how that evidence related to specific live issues
    before the jury. He erroneously left the impression that Warners and Chambers
    post-offence conduct was relevant to all of the offences with which they were
    charged and could assist them in establishing the respective states of mind of
    each accused.

6.4.1 The Trial Judge Should Have Delivered a No Probative
    Value
Instruction in Respect of Warners flight to Guyana

[92]

An inference that Warner had shot, aided Chambers in shooting, or
    abetted Chambers to shoot Musgrave and/or Chinambu, was not available from
    Warners post-offence flight to Guyana. The trial judges failure to instruct
    the jury that this was not an available inference is an error.

[93]

Through counsel, Warner admitted the serious offence of committing
    aggravated assault on Tsibu-Darkoh, with which he had been charged. This, and
    not the explanation given to his cabbie recounted in the trial judges charge,
    was Warners explanation for his flight to Guyana.

[94]

Warners post-offence flight to Guyana is as consistent with having
    committed the admitted offence of aggravated assault of Tsibu-Darkoh as with
    having committed that offence and the aggravated assault of Chinambu, as
    principal offender or as an aider or abettor. Therefore, his post-offence
    flight to Guyana is not probative of who shot Chinambu or whether he aided or
    abetted Chambers to shoot Chinambu.

[95]

While the offence of murder is more serious than that of aggravated
    assault, and fleeing the country is perhaps a relatively extreme instance of
    post-offence conduct, it cannot be said that Warners flight to Guyana was out
    of all proportion to the admitted offence of wounding Tsibu-Darkoh.
    Accordingly, in my view, the trial judge should have directed the jury that
    Warners post-offence flight to Guyana could not be used to infer guilt of
    Musgraves murder either.

[96]

I reject the Crowns argument that the jury would have understood that
    it was not to use evidence of Warners post-offence flight to Guyana in
    determining his guilt. The trial judge instructed the jury that the
    post-offence conduct was circumstantial evidence of guilt and, therefore, the
    jury would have believed that it could use the all of the evidence of
    post-offence conduct  including the evidence of Warners flight to Guyana  as
    evidence against Warner on all three counts.

[97]

Because the failure to instruct the jury that it could not consider the
    evidence of Warners flight to Guyana is dispositive of the ground of appeal
    arising out of the trial judges charge regarding post-offence conduct in the
    case of Warner, I principally focus the balance of my analysis through the lens
    of Chambers.

6.4.2 The Trial Judge Failed to Relate the Evidence to Specific
    Live Issues before the Jury

[98]

This case involves more than one accused and more than one offence.
    There were several live issues before the jury: did Chambers shoot and kill
    Musgrave; did he assist or encourage Warner in murdering Musgrave knowing that
    Warner had the intent to murder Musgrave; did he shoot Chinambu; did he assist
    or encourage Warner in committing an aggravated assault on Chinambu knowing
    that Warner intended to shoot and would shoot Chinambu; and did he assist or
    encourage Warner to shoot Tsibu-Darkoh, knowing that Warner intended to shoot
    and would shoot Tsibu-Darkoh? All of these, in turn, raised a number of
    sub-issues.

[99]

By saying that the post-offence conduct could be circumstantial
    evidence of guilt, the trial judge suggested that the jury could use all of
    the evidence of post-offence conduct to help resolve all of the issues before
    them. In essence, the trial judge improperly invited the jury to consider all
    of the evidence of post-offence conduct as evidence of guilt on all three
    charges. He failed to explain what inferences were and were not available from
    the evidence of post-offence conduct. In so doing, he erred.

[100]

By way of
    illustration, Chambers post-offence flight is not probative of whether he shot
    Musgrave as opposed to, for example, whether he shot Chinambu. The limited
    available inference from his flight is simply that he had participated in one
    or more of the shootings.

[101]

As I have
    explained, some of the evidence of post-offence conduct is relevant to some of
    the live issues that were before the jury. However, the trial judge did not
    explain this to the jury. Rather, he treated the evidence of post-offence
    conduct as an amorphous whole and failed to relate it to specific, live issues
    before the jury.

[102]

In my view, the
    effect of his error was to leave the jury with the impression that all of the
    evidence of post-offence conduct was relevant to all counts and encourage a
    leap from that evidence to a conclusion of guilt in relation to the shootings
    of Musgrave, Tsibu-Darkoh, and Chinambu.

6.4.3
Mens Rea

[103]

There is a
    further flaw in the trial judges charge relating to post-offence conduct. By
    indicating that Warners and Chambers post-offence conduct could be considered
    as evidence of their respective states of mind, the trial judge erroneously
    left the impression that their post-offence conduct could assist in
    establishing the
mens rea
element of the offences with which they were
    charged. Normally, post-offence conduct cannot help to determine the state of
    mind of an accused, and it could not do so in this case.

[104]

It could not
    assist the jury in determining whether the aider or abettor knew that the
    principal offender intended to murder Musgrave or shoot Tsibu-Darkoh or
    Chinambu. Further, I conclude above that another issue should have been before
    the jury: if Warner had murdered Musgrave, was Chambers guilty as an aider or
    abettor of murder or manslaughter? Chambers post-offence conduct was equally
    consistent with either verdict, and similarly could not assist the jury to
    determine Chambers level of culpability for the murder of Musgrave.

7.       DISPOSITION

[105]

I would allow
    the appeals, quash Warner and Chambers convictions for the murder of Musgrave
    and aggravated assault of Chinambu and Chambers conviction for the aggravated
    assault of Tsibu-Darkoh, and order a new trial.

Released: AH  SEP 16 2016

Alexandra Hoy
    A.C.J.O.

I agree John I.
    Laskin J.A.

I agree C. William Hourigan
    J.A.

[1]

Although the decision in
Jackson

was rendered
    before the Supreme Court clarified the law on aiding and abetting murder in
Briscoe
,
    in
R. v. M.R.
, 2011 ONCA 190, 257 C.C.C. (3d) 45, at paras. 47-48, O
    Connor A.C.J.O. explained that the
Jackson

remains good law
    despite that clarification.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Coulter, 2016 ONCA 704

DATE: 20160928

DOCKET: C58703

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Coulter

Appellant

Richard Litkowski, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: April 20, 2016

On appeal from the convictions entered on April 10, 2014,
    by Justice Neil L. Kozloff of the Ontario Court of Justice, sitting without a
    jury.

Gillese J.A.:

[1]

This appeal against conviction is founded on s. 11(
b
) of
    the
Canadian Charter of Rights and Freedoms
.

[2]

In the recent case of
R. v. Jordan
, 2016 SCC 27, a majority of the
    Supreme Court of Canada created a new framework to be applied where a breach of
    s. 11(
b
) is alleged.  The new framework is applicable to any case that
    was in the justice system when
Jordan

was released.
    Consequently, this court must apply the new framework, with its transitional
    features, to resolve the appeal.

OVERVIEW

[3]

In November of 2011, James Coulter (Mr. Coulter or the appellant)
    was arrested and charged with a number of child pornography offences.  He was
    convicted of those offences almost 29 months later.  He applied for a stay of
    proceedings, arguing that his rights under s. 11(
b
) of the
Charter

had been infringed (the Application).  The trial judge assessed less than
    2 of the 29 months as delay attributable to the Crown and limits on
    institutional resources.  He dismissed the Application.

[4]

Mr. Coulter brought an appeal to this court in which he contended that
    the trial judge erred in dismissing the Application.  He raised two grounds of
    appeal:  (1) that the trial judge incorrectly assessed much of the delay in the
    proceeding as neutral; and (2) that the trial judge failed to give sufficient
    weight to the prejudice that he suffered as a result of the delay.  The
    appellant argued that once those errors were corrected, a balancing of the
    interests that s. 11(
b
) is designed to protect led to the conclusion
    that a stay should be ordered.

[5]

The Crown accepted that some of the time that the trial judge had
    assessed as neutral was properly attributed to institutional or Crown delay.
    However, it argued that the delay was not unreasonable, given the nature of the
    case and the reasons for the delay.  Accordingly, it submitted, the appeal
    should be dismissed.

[6]

Oral argument on the appeal was heard on April 20, 2016.  At that time,
    counsel agreed that this court should reserve its decision in this matter until
    after the Supreme Court of Canada had released its decision in
R. v.
    Williamson
, 2016 SCC 28, then under reserve.
Williamson

was
    released contemporaneously with
Jordan
and shortly after
R. v.
    Vassell
, 2016 SCC 26.  After the release of those three Supreme Court decisions,
    counsel were invited to  and did  provide this court with written submissions
    on the impact of those decisions upon the resolution of this appeal (the further
    written submissions).

[7]

Applying the new framework established in
Jordan
, I conclude that
    the appeal should be dismissed.

BACKGROUND IN BRIEF

[8]

The appellant taught high school in Ontario and also lectured at an Ontario
    university.  He was arrested on November 17, 2011, and charged the following day
    with five counts of accessing, attempting to access, and possessing child
    pornography.

[9]

Certain items in Mr. Coulters home were seized, pursuant to a search
    warrant.  An analysis of those items disclosed a collection of child
    pornography showing young boys engaged in sex acts with adult males.  The
    following items were located:

·

34 stories containing child pornography;

·

110 child pornography movies on a laptop, including 5 that were
    downloaded from the Internet, 109 of which were accessible;

·

2 child pornography images, including an image of an adult male
    performing fellatio on a prepubescent boy; and

·

a DVD containing 3 child pornography movies.

[10]

The
    appellant made his first appearance in court the day following his arrest (i.e.
    November 18, 2011).  The information was sworn that same day.  After his first
    court appearance, the appellant appeared in set-date court a further six times between
    November 2011 and the end of March 2012.

[11]

Between
    April and July 2012, judicial pre-trials took place on three occasions: April
    10, June 8 and July 16.  The matter appeared likely to resolve.  However, the
    officer in charge  Detective Constable Dayna Boyko  continued her investigations
    until mid-April of 2012.  These investigations led to a further charge of
    making child pornography being laid on June 8, 2012.

[12]

Apart
    from the judicial pre-trials, the matter was adjourned on July 24, 2012, to
    allow for further disclosure and resolution discussions.  The matter proceeded
    on the path of resolution until August 7, 2012, when the appellant informed the
    court that he had decided to go to trial.  Another judicial pre-trial was
    scheduled for August 27, 2012, to make a trial time estimate.

[13]

At
    the August 27 appearance, defence counsel indicated that he would be bringing the
    Application.  The Application was scheduled to be heard on March 20, 2013.  Trial
    dates were set for June 5 and 6, 2013.  The matter was adjourned to October 2,
    2012, for the appellant to make his election for trial.

[14]

On
    October 2, 2012, the appellant elected trial in the Ontario Court of Justice and
    the matter was remanded to March 20, 2013, when the Application was scheduled
    to be heard.

[15]

A
    number of events caused both the Application and the trial to be rescheduled
    more than once.

[16]

The
    Application was eventually heard over three days: March 28, May 8 and May 17,
    2013.

[17]

The
    trial did not take place on June 5 and 6, 2013, as scheduled.  It was moved
    first to August 9, 2013, then to January 27, 2014, and finally to February 14,
    2014.  The only evidence led at trial on February 14, 2014, was an Agreed Statement
    of Facts.

[18]

The
    trial judge acquitted the appellant of the charge of making child pornography
    but convicted him of the other counts (attempting to access, accessing and
    possessing child pornography).  He stayed two of the five counts pursuant to
Kienapple
    v. R.,
[1975] 1 S.C.R. 729.

[19]

On
    April 10, 2014, the trial judge dismissed the Application.  He then sentenced the
    appellant to six months in custody, concurrent on each count, followed by three
    years of probation.

THE RULING ON THE APPLICATION

[20]

The
    trial judge decided the Application based on the then-governing legal
    principles in
R. v. Morin
, [1992] 1 S.C.R. 771.  He found that 874
    days had elapsed between the swearing of the information on November 18, 2011,
    and the completion of trial on April 10, 2014.

[21]

The
    trial judge began by reviewing the events leading up to the trial, relying on
    the transcripts from the appellants court appearances, affidavit evidence
    about scheduling matters, and affidavit and
viva voce
evidence from the
    appellant and Detective Constable Boyko.  The appellants evidence was
    primarily about the prejudice caused by the delay in the proceeding.  Detective
    Constable Boykos evidence focused on the specifics of her investigation,
    including the amount of material that had to be reviewed, the nature of that
    review, and the time required to conduct the review.

A.

The Time Period Assessments

[22]

The
    trial judge assessed the 874 days that elapsed from the time the first
    information was sworn to the conclusion of trial as follows:

·

November 18, 2011 to April 16, 2012  150 days  inherent delay
    required by the intake process.  The trial judge made this assessment based on
    the specifics of the investigation, including the substantial amount of
    material seized and the time it took the investigating officer to analyze it.  He
    found that the investigation was thorough, appropriate, and for the most part
    timely.

·

April 16, 2012 (when Detective Constable Boyko completed her
    investigation) to June 8, 2012 (when the final charge was laid)  53 days of delay
    due to the Crown.

·

June 8, 2012 to July 16, 2012 (express defence waiver); July 16,
    2012 to August 7, 2012 (implied defence waiver); and February 14, 2014 to April
    10, 2014 (express defence waiver)  together, 116 days of delay waived by the
    defence.

·

August 7, 2012 to August 27, 2012  20 days of delay for intake
    inherent time requirements.

·

August 27, 2012 to February 14, 2014  535 days  neutral.

[23]

The
    trial judge acknowledged that the delay he attributed to limits on
    institutional resources and the actions of the Crown totalled less than two
    months.  However, he stated, even if he had wrongly assessed some of the delay
    as neutral, rather than due to limits on institutional resources, he would
    still find that the relevant portion of the delay fell well within the applicable
    guidelines.

B.

Prejudice to the Appellant

[24]

The
    trial judge found that the most significant effect of the charges on the
    appellant related to his occupation as a school teacher.  The appellants
    employment as a school teacher was suspended when he was charged and, as a
    result of the charges, it was unlikely that he would ever be able to return to his
    chosen profession.

[25]

The
    trial judge stated that although he had no doubt that the appellant had
    suffered some prejudice as a result of the delay between his arrest and the
    conclusion of his trial, the prejudice he suffered was largely due to the
    nature of the charges he faced and not from delay in the proceedings.

[26]

The
    trial judge also noted that the inferred prejudice associated with the stress
    of living with unresolved criminal charges strengthens with each day that
    passes between arrest and trial.  He found that the conditions of the appellants
    release from custody  in particular, the requirement that he reside in
    comparative discomfort with his surety and the prohibition against use of the
    computer  were evidence of actual prejudice.

[27]

The
    trial judge found some evidence of an effort to ameliorate the release terms because
    defence counsel had approached the Crown about the matter.  However, he found
    no evidence of efforts by the appellant to expedite proceedings once the trial
    dates were set.

[28]

He
    noted that the trial co-ordinator had informed defence counsel on December 6,
    2012, that the Application could not proceed on the scheduled date of March 20,
    2013.  Subsequently, on January 7, 2013, the trial co-ordinator advised the defence
    to bring the matter forward to secure another date for the Application.  Then,
    on February 12, 2013, the trial co-ordinator advised defence counsel that
    earlier dates had become available for trial.  Defence counsel did not avail
    himself of the earlier trial dates, despite his apparent availability and the
    offer of the Crown to accept short service of materials.  The trial judge also
    noted that defence counsel was otherwise engaged in a different trial in
    Superior Court on the original trial dates.

[29]

The
    trial judge stated that the defence conduct, including action not taken, informed
    his assessment of the weight to be accorded to the prejudice suffered by the
    appellant and the balancing of the various factors.

C.

Conclusion on the Application

[30]

The
    trial judge concluded that, given the length of the delay he had attributed to
    the Crown and limitations on institutional resources, the actual prejudice to
    the appellant could not be said to outweigh societys interest in the trial on
    the merits.  Accordingly, the trial judge found that there was no breach of the
    appellants right to have a trial within a reasonable time.

THE LEGAL FRAMEWORK FOLLOWING
JORDAN

[31]

The
    majority in
Jordan

stated that the
Morin

framework
    for s. 11(
b
) applications had given rise to both doctrinal and practical
    problems that contributed to a culture of delay and complacency.  Consequently,
    it established a new framework to be applied where a breach of s. 11(
b
) is
    alleged.

[32]

At
    the heart of the new framework lies 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 cases going to trial in the provincial court after a preliminary
    inquiry (
Jordan
, para. 46).

[33]

A
    summary of the new framework is set out below, with the key elements
    highlighted in bold.  An explanation of how each key element of the new
    framework is to be determined follows.  See also this courts judgment in
R.
    v. Manasseri
, 2016 ONCA 703, released contemporaneously with this
    judgment.  The explanation of the new framework in these judgments is
    consistent.

A.

The New Framework Summarized

[34]

Calculate
    the
total delay
, which is the period from the charge to the actual or
    anticipated end of trial (
Jordan
, at para. 47).

[35]

Subtract
defence delay
from the total delay, which results in the
Net Delay

    (
Jordan
, at para. 66).

[36]

Compare
    the Net Delay to the presumptive ceiling (
Jordan
, at para. 66).

[37]

If
    the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.
    To rebut the presumption, the Crown must establish the presence of
exceptional
    circumstances
(
Jordan
, para. 47).  If it cannot rebut the
    presumption, a stay will follow (
Jordan
, para. 47).  In general,
    exceptional circumstances fall under two categories:
discrete events
and
particularly complex cases
(
Jordan
, para. 71).

[38]

Subtract
    delay caused by discrete events from the Net Delay (leaving the
Remaining
    Delay
) for the purpose of determining whether the presumptive ceiling has
    been reached (
Jordan
, para. 75).

[39]

If
    the Remaining Delay exceeds the presumptive ceiling, the court must consider
    whether the case was particularly complex such that the time the case has taken
    is justified and the delay is reasonable (
Jordan
, at para. 80).

[40]

If
    the
Remaining Delay falls below the presumptive ceiling
, the onus is on
    the defence to show that the delay is unreasonable (
Jordan
, para. 48).

[41]

The
    new framework, including the presumptive ceiling, applies to cases already in
    the system when
Jordan

was released (the
Transitional Cases
)
    (
Jordan
, para. 96).

B.

Key Elements in the New Framework

(1)

Defence Delay

[42]

Defence
    delay has two components: (1) that arising from
defence waiver
; and (2) delay
    caused solely by the conduct of the defence (
defence-caused

delay
)
    (
Jordan
, paras. 61 and 63).

[43]

Waiver
    can be explicit or implicit but, in either case, it must be clear and
    unequivocal.  The accused must have full knowledge of his or her rights, as
    well as the effect waiver will have on those rights (
Jordan
, para.
    61).

[44]

Defence-caused
    delay is comprised of situations where the acts of the defence either directly
    caused the delay or are shown to be a deliberate and calculated tactic employed
    to delay the trial.  Frivolous applications and requests are the most
    straightforward examples of defence delay (
Jordan
, para. 63).  Where
    the court and the Crown are ready to proceed but the defence is not, the
    defence will have directly caused the delay (
Jordan
, para. 64).

(2)

Exceptional Circumstances

[45]

If
    the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to
    rebut the presumption of unreasonableness based on the presence of exceptional
    circumstances.

[46]

Exceptional
    circumstances lie outside the Crowns control in that: (1) they are reasonably
    unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably
    remedy the delays emanating from the circumstances once they arise.  Such
    circumstances need not be rare or entirely uncommon (
Jordan
, para. 69).

[47]

An
    exceptional circumstance is the only basis upon which the Crown can discharge
    its burden to justify a Net Delay that exceeds the ceiling.  The seriousness or
    gravity of the offence cannot be relied on.  Nor can chronic institutional
    delay or the absence of prejudice to the accused (
Jordan
, para. 81).

[48]

The
    list of exceptional circumstances is not closed but, in general, exceptional
    circumstances fall under two categories: discrete events and particularly
    complex cases (
Jordan
, para. 71).

(a)

Discrete Events

[49]

An
    illustration of a discrete event that will generally qualify is a medical or
    family emergency on the part of the accused, important witnesses, counsel or
    the trial judge (
Jordan
, para. 72).

[50]

The
    period of delay caused by any discrete event must be subtracted from the Net Delay
    for the purpose of determining whether the presumptive ceiling has been
    reached.  However, any portion of the delay caused by a discrete event that the
    Crown or system could reasonably have mitigated may not be subtracted (
Jordan
,
    para. 75).

(b)

Particularly Complex Cases

[51]

Particularly
    complex cases are cases that, because of the nature of the evidence or issues (or
    both), require an inordinate amount of trial or preparation time such that the
    delay is justified (
Jordan
, para. 77).  The seriousness or gravity of
    the offence cannot be relied on to establish that the case is particularly
    complex (
Jordan
, para. 81).

[52]

Where
    the trial judge finds that the case was particularly complex such that the time
    the case has taken is justified, the delay is reasonable and no stay will
    issue.  No further analysis is required (
Jordan
, para. 80).

(3)

Remaining Delay is Below the Presumptive Ceiling

[53]

If
    the Remaining Delay falls below the presumptive ceiling, the onus is on the
    defence to show that the delay is unreasonable (
Jordan
, para. 48).  To
    do so, the defence must establish two things: (1) it took meaningful steps that
    demonstrate a sustained effort to expedite the proceedings (
defence
    initiative
); and (2) the case took markedly longer than it reasonably
    should have.  Absent both of these two factors, the s. 11(
b
) application
    must fail (
Jordan
, para. 82).

[54]

Stays
    beneath the presumptive ceiling should be granted only in clear cases (
Jordan
,
    para. 83).

(4)

Transitional Cases

[55]

The
    new framework applies to cases currently in the system (
Jordan
, para.
    94).  The analysis of transitional cases differs depending upon whether the
    Remaining Delay exceeds or falls below the presumptive ceiling.

(a)

Remaining Delay Exceeds the Presumptive Ceiling

[56]

Where
    the Remaining Delay exceeds the presumptive ceiling, a transitional exceptional
    circumstance may arise where the charges were brought prior to July 8, 2016,
    the date that
Jordan

was released.  This transitional
    exceptional circumstance will apply when the Crown satisfies the court that the
    time the case took is justified based on the parties reasonable reliance on the
    law as it previously existed.  This requires a contextual assessment, sensitive
    to the manner in which the previous framework was applied, and to the fact that
    the parties behaviour cannot be judged strictly against a standard of which
    they had no notice.  Considerations of prejudice and the seriousness of the
    offence can inform whether the parties reliance on the previous state of the
    law was reasonable (
Jordan
, para. 96).

[57]

Moreover,
    the Remaining 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 counsels behaviour is
    constrained by systemic delay issues (
Jordan
, para. 97).

(b)

Remaining Delay Falls Below the Presumptive Ceiling

[58]

For
    cases currently in the system in which the Remaining Delay falls below the
    ceiling, the two things that the defence must establish (i.e. defence
    initiative and whether the time the case took markedly exceeds what was
    reasonably required) must also be applied contextually, sensitive to the
    parties reliance on the previous state of the law (
Jordan
, para. 99).

[59]

Further,
    institutional delay that was reasonably acceptable in the relevant jurisdiction
    under the
Morin

framework will be a component of the reasonable
    time requirements (
Jordan,
at para. 100).

THE ISSUES

[60]

Jordan

fundamentally changed the way that the courts are to decide s. 11(
b
)
    applications.  Because it applies to cases currently in the system, it also fundamentally
    changed the issues that must be resolved on this appeal.  In light of
Jordan

and the parties further written submissions, in my view, those issues are:

1.

What is the period of defence delay?

2.

What delay is attributable to exceptional circumstances?

3.

How does the framework apply to this transitional case?

FOUNDATIONAL POINTS

[61]

Before
    analyzing the issues, two foundational points must be made.

[62]

First,
    the period of total delay in this case runs from November 18, 2011, when the information
    containing the first five counts was sworn, to April 10, 2014, when the trial
    concluded.  Thus, the total delay is 29 months.

[63]

Second,
    as the case was tried in provincial court and there was no preliminary inquiry,
    the presumptive ceiling is 18 months.

ISSUE #1     WHAT IS THE PERIOD OF DEFENCE DELAY?

[64]

In
    my view, 6 months are properly assessed as defence delay: the defence expressly
    waived 3 months of delay and an additional 3 months of delay was caused solely
    by the conduct of the defence.

A.

Waiver

[65]

I see no basis on which to interfere with the trial judges findings
    that the defence expressly waived 3 months of delay, comprised of two periods:

1.

June 8  July
    16, 2012 (1 month); and

2.

February 14
    April 10, 2014 (2 months).

(1)

June 8  July 16, 2012

[66]

On June 8, 2012, the appellant appeared by way of designation for a
    continuing judicial pre-trial conference.  The Crown was ready to set a trial
    date but noted that the matter was likely headed towards a resolution.  The
    Crown explained to the court that the defence had requested an adjournment,
    pending release of an anticipated Ontario Superior Court of Justice decision
    that could, in the defences view, affect resolution discussions.  The defence
    agreed to continue the judicial pre-trial on July 16, 2012.

[67]

There is some ambiguity in the appellants position on how to treat this
    period.  In his factum, at para. 28, he acknowledges that this period can
    fairly be said to have been waived by the defence.  However, in the summary
    table in his factum, he classified it as neutral time.  The appellant did not
    address the issue of how much time should be treated as defence waiver in his further
    written submissions.

[68]

The trial judge found that the defence had expressly waived this
    period.  In the circumstances, including the appellants concession at para. 28
    of his factum, I see no basis on which to interfere with the trial judges
    finding.

(2)

February 14  April 10, 2014

[69]

On February 14, 2014, the parties filed an Agreed Statement of Facts.
    The trial judge heard submissions on the allegation of making child pornography
    and found the appellant not guilty on that count.  The trial judge convicted
    the appellant on the first five counts.

[70]

The defence then asked that the court apply the principle in
Kienapple
.
    The matter was adjourned to allow the Crown to consider its position.  The
    trial judge asked if the parties had agreed to a date.  Defence counsel
    responded with the agreed-on date of April 10, 2014, and said that 11(
b
)
    from todays date until that date
is waived
. (emphasis added)

[71]

Again, I see no basis for interfering with the trial judges finding
    that the defence expressly waived this period.

B.

Defence-Caused Delay

[72]

The 3 months of delay in this category is comprised of three periods:

1.

August 22  27,
    2012 (1 week);

2.

May 17  June 5,
    2013 (3 weeks); and

3.

June 5  August
    9, 2013 (2 months).

(1)

August 22  27, 2012

[73]

On August 7, 2012, the appellant appeared to schedule a further judicial
    pre-trial conference to arrive at an estimate for trial duration.  The court
    and the Crown were ready to proceed on August 22, 2012, but counsel for the defence
    was unavailable until August 27, 2012.  In accordance with para. 64 of
Jordan
,
    the defence directly caused the delay as the court and the Crown were ready to
    proceed, but the defence was not.

(2)

May 17  June 5, 2013

[74]

The parties are agreed that this period is defence-caused delay, in
    accordance with
Jordan
.  I accept this.

[75]

On August 27, 2012, the parties set trial dates of June 5 and 6, 2013.  The
    trial judge found that the defence did not put earlier trial dates on the
    record (although he had indicated earlier dates for the s. 11(
b
)
    application, scheduled for March 20, 2013).  On February 12, 2013, the trial
    coordinator advised the parties that earlier dates had opened up and the
    two-day trial could be rescheduled for various two-day periods in February,
    March and April, in addition to May 10, 17, 29 and 30.  Although the defence
    estimated that it would be prepared for trial by May, it declined to accept
    dates earlier than June.  Defence counsel offered to keep the original June
    trial dates and to take responsibility for the delay between the May dates and
    the June dates already set for trial.

(3)

June 5  August 9, 2013

[76]

Both parties submit that this period is defence-caused delay within the
    meaning of
Jordan
.  Again, I accept this and for the same reason: both
    the court and the Crown were ready to proceed but defence counsel was
    unavailable.

[77]

On June 5, 2013, the defence appeared by way of an agent to explain that
    defence counsel was occupied with a jury trial and was not available to conduct
    the trial as scheduled.  The defence counsel gave the Crown one days notice of
    the conflict by way of e-mail.  Knowing that the trial would not proceed, the
    Crown did not arrange for its witnesses to attend court on June 5, 2013.  The
    agent for the defence agreed that the Crown would have been ready to conduct
    the trial but for the e-mail warning of defence counsels scheduling conflict.
    The court directed the parties to the trial coordinator to reschedule the
    trial, resulting in the date of August 9, 2013.

ISSUE #2     WHAT
    DELAY IS ATTRIBUTABLE TO EXCEPTIONAL CIRCUMSTANCES?

A.

Introduction

[78]

Under the
Jordan

framework, the 6 months of defence
    delay must be subtracted from the 29-month period of total delay.  Accordingly,
    the Net Delay is 23 months.

[79]

Because the Net Delay exceeds the 18-month presumptive ceiling, it is
    presumptively unreasonable.  It falls to the Crown to rebut the presumption of
    unreasonableness based on the presence of exceptional circumstances.

[80]

It
    will be recalled that, in general, exceptional circumstances fall under two
    categories: discrete events and particularly complex cases.  In this case, as I
    explain below, I need only analyze the category of discrete events.

B.

Discrete Events

[81]

The
    trial was scheduled to continue on August 9, 2013.  Unfortunately, Crown counsel
    was involved in a car accident that very morning.  The trial had to be
    rescheduled, resulting in the date of January 27, 2014.  Further, as the trial
    judge noted, defence counsel advised the court that the defence would not have
    been ready to proceed that day.

[82]

At
    para. 72 of
Jordan
, a medical emergency on the part of counsel is
    offered as one example of a discrete event that would qualify as an exceptional
    circumstance.  Thus, this event clearly constitutes a discrete event.

[83]

In
    accordance with para. 75 of
Jordan
, the court must consider whether any
    portion of the delay caused by a discrete event could have been reasonably
    mitigated by the Crown or system.  If so, that portion of the delay caused by
    the discrete event cannot be subtracted.

[84]

Counsel
    for both parties agree that the period from August 9, 2013, to January 27, 2014,
    is a discrete event within the meaning of
Jordan
.  Neither counsel suggests
    that the Crown or system could reasonably have mitigated any portion of the
    delay.  I agree, with the result that 6 months of delay was caused by the
    discrete event.

C.

Particularly Complex Cases

[85]

Jordan
dictates that delay arising from discrete events is to be subtracted from the Net
    Delay for the purpose of determining whether the presumptive ceiling has been
    reached.  As explained above, the Net Delay is 23 months.  After subtracting 6
    months of delay attributable to the discrete event, the Remaining Delay of 17
    months falls below the 18-month presumptive ceiling.

[86]

The
    majority in
Jordan

wrote that, for cases in which the Remaining
    Delay falls
above

the presumptive ceiling, it is open to the
    Crown to prove that the case was particularly complex such that the trial
    occurred within a reasonable time.  In this case, as the Remaining Delay falls
below

the presumptive ceiling, it is unnecessary to consider whether this was a
    particularly complex case within the meaning given to that phrase by
Jordan
.

ISSUE #3     HOW DOES THE framework APPLY
    TO THIS TRANSITIONAL CASE?

A.

Introduction

[87]

Because the Remaining Delay of 17 months falls below the presumptive
    ceiling, the appellant bears the onus of showing that the delay is unreasonable
    (
Jordan
, at para. 82).
To show that
    the delay is unreasonable, the appellant must establish two things: (1) that
    the defence took meaningful steps that demonstrate a sustained effort to
    expedite the proceedings; and (2) that the case took markedly longer than it
    reasonably should have (
Jordan
,

para. 82).  The court must also be mindful that stays for cases in which
    the delay falls below the presumptive ceiling are rare and limited to clear
    cases (
Jordan
, para. 48).

[88]

A
s the charges against the
    appellant were brought prior to the release of the Supreme Court decision in
Jordan
,
    this is a transitional case (
Jordan
,

para. 94).  Thus, in determining
    whether the appellant has met his onus, this court must apply the new framework
    contextually and flexibly (
Jordan
, para. 94).

[89]

While there are a variety of reasons for why the framework must be
    applied contextually and flexibly to transitional cases,
Jordan

stresses
    two in particular.  First, the administration of justice cannot tolerate a
    recurrence of what transpired after the release of
R. v.

Askov
,
    [1990] 2 S.C.R. 1199 when a myriad of charges were stayed in Ontario as a
    result of the abrupt change in the law (
Jordan
, paras. 92 and 94).
    Second, it is not fair to strictly judge participants in the justice system
    against standards of which they had no notice.  Thus, the court must remain
    sensitive to the parties reliance on the previous state of the law (
Jordan
,

paras. 94 and 99).

B.

The Appellants Submissions

[90]

In his further written submissions, the appellant took the position that
    even after defence delay and delay caused by the discrete event were subtracted
    from the total delay, the Remaining Delay still exceeded the 18-month
    presumptive ceiling.  (I note that the appellants position is largely
    attributable to the fact that in his further written submissions he did not
    address delay due to defence waiver.)  Consequently, the appellant did not make
    direct submissions on the basis that the Remaining Delay falls below the
    presumptive ceiling.

[91]

However, in his further written submissions, the appellant did submit
    that the following factors are relevant to a consideration of the transition
    period: (1) the appellant attempted to move the case along by retaining counsel
    immediately and by trying to narrow the issues; (2) seven months for disclosure
    of the forensic report was not reasonable; (3) the Crowns decision to add a
    making pornography charge, some seven months after the original charges were
    laid, delayed the progress of the case; and (4) the appellant experienced
    specific and real prejudice that the trial judge failed to take into account.

C.

Analysis

[92]

A consideration of these factors does not assist the appellant in
    rebutting the presumption that the Remaining Delay, which falls below the
    presumptive ceiling, was reasonable.  The trial judge made findings against the
    defence on each of these factors and I see no basis on which to interfere with
    those findings.

[93]

The appellants first factor is that the
    defence took meaningful steps to expedite the proceedings.  As the majority
    wrote in
Jordan
, at para. 99,
    for a transitional case in which the Remaining Delay falls below the
    presumptive ceiling, the criteria of defence initiative, although relevant, is
    not dispositive of the s. 11(
b
) application.

[94]

However, while t
he trial judge
    found some evidence that the defence attempted to ameliorate the appellants
    release terms  defence counsel had approached the Crown about the matter  he
    found no evidence of defence efforts to expedite proceedings once the trial
    dates were set.

[95]

In his ruling on the Application, the trial judge explained that the trial
    co-ordinator informed defence counsel on December 6, 2012, that the Application
    could not proceed on the scheduled date of March 20, 2013.  Then, on January 7,
    2013, the trial co-ordinator told the defence to bring the matter forward to
    secure another date for the Application.  And, on February 12, 2013, the trial
    co-ordinator advised defence counsel that earlier dates had become available
    for trial.  Defence counsel did not avail himself of the earlier dates, despite
    his apparent availability and the Crowns offer to accept short service of
    materials.

[96]

The trial judges findings on the matter of defence initiative are fully
    justified on the record.  I have considered them on a contextual basis that is
    sensitive to the previous state of the law and cannot conclude that the defence
    took meaningful steps demonstrating a sustained effort to expedite the
    proceedings.

[97]

The appellants second and third factors are related.  They, too, fail
    on the findings of the trial judge.

[98]

The trial judge found that, although the intake period of approximately
    five months was lengthy, it was not unreasonable.  He made that finding based
    on: the specifics of the investigation, including the substantial amount of
    material seized; the lengthy period of necessary post-charge investigation and
    analysis; and his determination that Detective Constable Boykos investigation
    was thorough, appropriate and largely timely.

[99]

The trial judge expressly considered that the appellant had promptly
    retained counsel and had been diligent in pursuing disclosure.  He also acknowledged
    that delay occurred because of the Crowns ongoing disclosure obligations (as
    the investigation continued) and the need for numerous judicial pre-trial
    conferences.

[100]

But,
    as the trial judge found, the period between the appellants arrest and the
    first judicial pre-trial was insufficient to allow Detective Constable Boyko to
    complete her investigation.  In his view, the detective needed time to
    determine whether there was evidence to support the making charge.  On April
    11, 2012, Detective Constable Boyko found, on one DVD among 439 discs seized
    from the appellants home, the child pornography that led to the making
    charge.  She concluded her investigation, having reviewed all of the discs, on
    April 16, 2012, about five months after the appellants arrest.

[101]

Although
    the trial judge found Crown delay of almost two months in relation to the
    laying of the new charge, his overall finding was that the investigation was
    timely.

[102]

Given
    the findings of the trial judge, the appellant has not persuaded me to accept
    as valid either his second or third factor.

[103]

Similarly, the appellants fourth factor  that the appellant
    experienced specific and real prejudice that the trial judge failed to take
    into account  fails on the findings of the trial judge.

[104]

The
    trial judge found that the appellant experienced minimal prejudice as a result
    of the delay.  The prejudice that he did suffer arose from: (1) the appellants
    restrictive bail conditions, requiring him to live with his father in
    Collingwood while maintaining his own home in Toronto and commuting to Toronto
    for therapy; and (2) the condition barring the appellant from accessing the Internet,
    which had restricted his efforts to find new employment.  However, the trial
    judge found that the vast bulk of the prejudice to the appellant came from the
    nature of the offences and its impact on his occupation as a teacher.  This is
    not prejudice flowing from delay.

D.

Conclusion

[105]

The majority in
Jordan

cautions that given the level of
    institutional delay tolerated under the previous approach, a stay of
    proceedings [where the Remaining Delay is] below the ceiling will be even more
    difficult to obtain for cases currently in the system (para. 101).  It also
    warns that the contextual approach to Transitional Cases is necessary to ensure
    that the post-
Askov

situation, where tens of thousands of cases
    were stayed in Ontario alone, is not repeated (
Jordan
, paras. 92-94).

[106]

The Remaining Delay of 17 months is below the presumptive ceiling.  The
    figure of 17 months was arrived at without a consideration for the particular
    complexity of the case (if any) or for the level of tolerance for institutional
    delay in the jurisdiction in which this case was tried.  The trial judges
    findings  reviewed with due recognition for the parties reliance on the
    then-existing state of the law  do not assist the appellant.

[107]

In the circumstances, as informed by the cautions stressed by the
    majority and discussed above, I have no difficulty in concluding that the appellant
    has not rebutted the presumption that the Remaining Delay was reasonable.

DISPOSITION

[108]

For
    these reasons, I would dismiss the appeal.

Released: September 28, 2016 (G.R.S.)

E.E. Gillese
    J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Curtis, 2016 ONCA 685

DATE: 20160916

DOCKET: C62219

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Krista Curtis

Appellant

Paul Calarco, for the appellant

Jeremy Streeter, for the respondent

Heard: September 12, 2016

On appeal from the conviction entered on October 26, 2015
    and the sentence imposed on April 19, 2016 by Justice Nathalie Gregson of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant appeals her conviction for possession of fentanyl for the
    purpose of trafficking and failing to comply with a recognizance by having a
    cell phone.

[2]

The appellant was arrested about three and a half hours after being
    observed meeting with a known drug user and exchanging a small item for cash.
    Upon her arrest, the appellant was found in possession of four fentanyl
    patches. Although the appellant had a prescription for fentanyl, the patches
    were not found in her purse where two bottles of prescription medication were
    located, but rather in a plastic baggy hidden in the folds of her stomach skin.

[3]

The police also found a cell phone in the appellants purse. This was in
    breach of her bail terms as the phone had to have been registered with the
    police within 48 hours of it being acquired and it was not.

[4]

The appellant advances three grounds of appeal.

[5]

First, she argues that the trial judge erred in relying on hearsay from
    an informant as proof of the substantive elements of the drug offense.

[6]

The Crown agrees that the trial judge erred in relying on the
    information received from an informant but argues that, quite apart from the
    hearsay, the evidence in support of the conviction was overwhelming. The Crown
    maintains that this is an appropriate case to apply the curative proviso under
    s. 686(1)(b)(iii) of the
Criminal Code
. We agree.

[7]

In our view, even without the trial judges reference and apparent
    reliance in his reasons on hearsay from an informant to the effect that the
    appellant may have had involvement with illegal drugs, there is no reasonable
    possibility that the verdict would have been different.

[8]

In
R. v. Bevan
, [1993] 2 S.C.R. 599, at p. 617, the Supreme
    Court of Canada asserted that the curative proviso can only be applied where
    there is no reasonable possibility that the verdict would have been different
    had the error at issue not been made. In
R. v. Sekhon
, 2014 SCC 15, [2014]
    1 S.C.R. 272, at para. 56, Moldaver J. reminded appellate courts that, when considering
    the application of the proviso in a circumstantial case:

it is necessary to look at the whole of the admissible evidence
    in assessing the strength of the case. It is not the task of an appellate court
    to parse each item of evidence in search of a possible innocent explanation. If
    that were so, it would be virtually impossible to ever satisfy the second
    branch of the proviso in a circumstantial case.

[9]

Aside from the impugned evidence, the trial judge relied on the observed
    hand-to-hand transaction by the appellant with a known drug user carried out in
    a gravel parking lot some three and a half hours prior to her arrest and noted
    that when she was arrested she had a cell phone and cash in her purse and a
    second cell phone was found in the back seat of the vehicle. More importantly,
    the trial judge relied on where and how the drugs were found.

[10]

If the appellant had been holding the drugs for a valid purpose, she
    would not normally have become nervous when the officer conducting a body
    search asked her to lift up her stomach skin. It is only upon her having lifted
    her stomach skin that the drugs contained in a baggy were revealed. It simply
    defies logic and common sense that someone with a valid prescription for
    fentanyl who is holding it for personal use and not to traffic would choose to
    hide it in this manner. It is also incongruous given that she kept two
    prescription bottles of medication in her purse.

[11]

The second and third grounds of appeal relate to the conviction for
    failure to comply with a recognizance. The appellant submits that the trial judge
    erred in permitting the Crown to lead evidence of a statement made by the
    appellant regarding her cell phone without a
voir dire
to establish
    the voluntariness of that statement and in failing to consider exculpatory
    evidence contained in that statement.

[12]

We do not give effect to these grounds of appeal. We agree that, in the
    absence of any attempt at establishing the voluntariness of the statement, the appellants
    statement should not have been entered into evidence. That error, however, is
    harmless as the trial judge did not rely on it in convicting the appellant.

[13]

The failure to comply conviction rested on the examination of the cell
    phone, which examination revealed that a text message had been sent to the
    appellant two weeks prior to her arrest, and on the evidence of Detective
    Sherriff to the effect that the police had no record of the cell phone having
    been registered.

[14]

As for the exculpatory evidence relied on by the appellant, it consists
    of a statement by her that she had only had the cell phone for two days and had
    not had time to register it. That statement was proven wrong by the objective
    evidence of the cell phone examination and was properly rejected by the trial
    judge.

[15]

In conclusion, we consider the errors to have been harmless and that this
    is an appropriate case to apply the curative proviso. The appeal is therefore
    dismissed.

Eileen E. Gillese J.A.

Paul Rouleau J.A.

David Brown J.A.