



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McManus, 2017 ONCA 188

DATE: 20170303

DOCKET: C58758 & C58976

Watt, Epstein and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Scott McManus and Megan Chapman

Appellants

Richard Posner, for the appellant Scott McManus

Gabriel Gross-Stein, for the appellant Megan Chapman

Brian G. Puddington, for the respondent

Heard: June 30, 2016

On appeal from the convictions entered by Justice Alan Bryant
    of the Superior Court of Justice, sitting with a jury, on February 28, 2014.

van Rensburg J.A.:

A.

Introduction

[1]

Following a jury trial, the appellants were convicted of possession of
    cocaine and marijuana for the purpose of trafficking, contrary to the
Controlled
    Drugs and Substances Act
, S.C. 1996,
    c. 19
. McManus was sentenced to six years in jail. Chapman was
    sentenced to a reformatory term of 12 months.

[2]

The appellants appeal their convictions on four grounds. The first
    concerns the dismissal of a pre-trial application under s. 24(1) of the
Charter
    of Rights and Freedoms
to stay the proceedings for breach of the
    appellants rights to be tried within a reasonable time under s. 11(b). The
    other three grounds raise issues concerning alleged errors of law by the trial
    judge: first, in admitting expert opinion evidence by a police witness who was
    an investigating officer; second, in the trial judges ruling on a
Corbett
application
    (
R. v. Corbett
, [1988] 1 S.C.R.
    670)
that would have permitted the cross-examination of McManus on
    a previous drug trafficking conviction had he testified at trial; and third,
    respecting alleged unfairness in the trial judges charge to the jury regarding
    the defence witness, Jeff Averill, who testified that the drugs were his.

[3]

For the reasons that follow, I would allow the appeal, set aside the
    appellants convictions and direct a new trial.

B.

Background Facts

[4]

The appellants were investigated for drug offences. Surveillance
    established their connection to an apartment building on Waterloo Street in
    London, Ontario. Search warrants for a specific apartment and for Chapmans
    vehicle were obtained and executed on February 4, 2010. The appellants were
    located in the vehicle, where trace amounts of cocaine were found. A search of
    the apartment and vehicle revealed some cash, 456 grams of marijuana, and 487
    grams of cocaine, as well as various documents in the names of either McManus
    or Chapman, including Chapmans passport, birth certificate, and documents
    relating to her vehicle. Many of the documents showed other addresses for the
    appellants. Police also found a debt book and a book titled
The Cocaine
    Handbook: An Essential Reference
. The appellants were arrested and charged
    with possession of cocaine and marijuana for the purpose of trafficking.

[5]

The appellants trial in the Superior Court took place approximately
    four years after their arrest.  The appellants brought a s. 11(b) application
    which was determined and dismissed under the then applicable
Morin
framework
    (
R. v. Morin
, [1992] 1 S.C.R. 771).

[6]

At trial, the Crown relied on the drugs and other items seized during
    the execution of the search warrants. The Crown also relied on a number of text
    messages between the appellants that were retrieved from their cell phones.
    Over the objection of defence counsel and after a
voir dire
, one of
    the investigating officers, D.C. Bullick, was permitted to give expert evidence
    that certain words and phrases used in the text messages were indicative of
    trafficking.

[7]

McManus brought a
Corbett
application, which the trial judge
    dismissed. The trial judge determined that the Crown was entitled to
    cross-examine McManus on two offences from his criminal record were he to
    testify, including a conviction for possession for the purpose of trafficking
    cocaine.

[8]

Neither appellant testified at trial. There was one witness for the
    defence, Jeff Averill, who had a lengthy criminal record, and who testified
    that he used the apartment where the drugs were found as a safe house. He
    claimed he was the person who had stashed the drugs that were discovered during
    the search of the apartment. In his charge to the jury, the trial judge
    summarized Averills evidence and made several comments critical of his
    reliability and credibility.

C.

Issues

[9]

The appeal raises the following issues:

1.

Are the appellants entitled to a stay of proceedings for breach of their
    right to a trial within a reasonable time under s. 11(b) of the
Charter
?

2.

Did the trial judge err in qualifying D.C. Bullick as an expert witness
    and admitting his opinion?

3.

Was the trial judges ruling on McManuss
Corbett
application
    unreasonable? As a result, were either or both of the appellants denied a fair
    trial?

4.

Was the trial judges charge to the jury about the defence witness
    unfair?

(1)

Issue 1: Are the Appellants Entitled to a Stay of Proceedings for Breach
    of their s. 11(b)
Charter
Rights
?

(a)

Decision of the Application Judge

[10]

The
    appellants were charged on February 4, 2010. Their trial concluded on February
    28, 2014. While the entire period is relevant to the delay analysis, at the
    time they brought their s. 11(b) application the appellants were concerned only
    about the delay in the Ontario Court of Justice (OCJ).

[11]

The
    stay application was determined in advance of the trial by Gorman J. She
    described the case as a bread and butter urban drug investigation. The
    application judge was provided with a detailed chronology and explanation for
    the various adjournments, as well as a transcript for each appearance. She
    noted that the total delay from arrest to the trial date in February 2014 was
    1,466 days, which included 1,285 days in the OCJ.

[12]

There
    were four significant delay periods: the first was the seven months after the
    appellants arrest, while the Crown unsealed and vetted the Information to
    Obtain (ITO) to redact information that might identify a confidential informer
    (CI). The second was a period of six months before the first preliminary inquiry
    date was set. The third delay period of about nine months occurred when the
    preliminary inquiry was adjourned at the request of the defence. The fourth was
    an adjournment of the preliminary inquiry at the Crowns request, resulting in
    a further delay of approximately nine months.

[13]

The
    following is a chronology of events in the OCJ and, in bold, the application
    judges calculation and attribution of the reasons for delay under the
Morin
framework:

·

February 4, 2010  October 29, 2010 (arrest date to first date
    after Crown vetting of search warrant and disclosure):
90 days inherent
    delay
;
177 days Crown delay.


·

October 29, 2010  November 5, 2010 (defence requests one week
    adjournment to set date for preliminary inquiry):
7 days defence delay.


·

November 5, 2010  May 11, 2011 (first scheduled one day
    preliminary inquiry date):
6 months, 6 days institutional delay.

·

May 11, 2011  January 18, 2012 (defence requests adjournment of
    preliminary inquiry due to a conflict of interest concern in representing both
    accused):
8 months, 7 days defence delay.

·

January 18, 2012  January 27, 2012 (Chapman serves late
Dawson
application (
R. v. Dawson
(1998), 39 O.R. (3d) 436 (C.A.)) to
    cross-examine deponent of ITO and defence counsel identifies possible CI
    privilege issue in vetted ITO. Crown requests adjournment of preliminary
    inquiry):
9 days Crown delay.

·

January 27, 2012  October 17, 2012 (preliminary inquiry
    adjourned):
5 months Crown delay; 4 months, 21 days defence delay.
(The Crown properly concedes that the application judge
    added an extra month here as the total delay period is eight months, 21 days,
    and suggests that the proper period attributable to defence delay is therefore three
    months, 21 days.)

·

October 17, 2012  January 25, 2013 (preliminary inquiry begins
    and is adjourned):
3 months, 9 days institutional delay.
(The
    preliminary inquiry was in fact adjourned on October 19, despite having started
    on October 17.)

·

January 25, 2013  April 30, 2013 (defence-initiated adjournment
    of preliminary inquiry, then preliminary inquiry continues for one day and is adjourned):
3 months, 5 days defence delay.
(The preliminary inquiry in
    fact continued on February 13, 2013, not April 30, 2013. The Crown concedes
    that only 19 days should be attributed to the defence for this period.)

·

April 30, 2013  June 21, 2013 (preliminary inquiry adjourned for
    argument):
51 days institutional delay.

[14]

The
    first appearance in the Superior Court was July 9, 2013. Counsel for McManus
    expressed concern about delay. On August 13, 2013, the s. 11(b) application was
    scheduled for November 14, 2013 and a five-day jury trial was set for February 10,
    2014. Both were the first available dates offered by the court. At the s. 11(b)
    application hearing, defence counsel specifically took no issue with the time
    in the Superior Court.

[15]

The
    application judge attributed only 90 days to inherent delay, although she
    essentially treated the time in the Superior Court as neutral in her s. 11(b)
    analysis. She calculated total institutional delay of 11 months, six days and Crown
    delay of ten months. She found defence delay of 19 months, ten days. She
    concluded that the overall delay was not unacceptable, and noted that the
    transcripts disclosed at the very least acquiescence by McManus in regard to
    his court appearances. She commented that, while the Crown-caused delay was
    concerning, it was not egregious. The Crown was prepared to proceed on the first
    preliminary inquiry date, which was adjourned at the request of the defence.
    The application judge noted there was no evidence of actual prejudice and, in
    light of her attribution of delay and the facts, she was not prepared to infer
    prejudice. She stated that a stay of proceedings must only be granted in the
    clearest of cases, and that this was not such a case. She was not persuaded, in
    all of the circumstances, that the delay was unreasonable.

(b)

Positions of the Parties Pre-
Jordan

[16]

When
    the appellants initially appealed the dismissal of the s. 11(b) application, they
    alleged errors in the application judges articulation of the proper test for
    granting a stay, her attribution of responsibility for certain periods of delay
    to the defence, and her refusal to infer prejudice.

[17]

With
    respect to delay, the appellants submitted that delay of no more than nine
    months should be attributed to the defence. In addition to the calculation
    errors that were conceded by the Crown, the application judge erred in
    allocating to the defence any part of the nine month delay from January 18,
    2012 to October 17, 2012. They argued that this delay resulted from the adjournment
    of the preliminary inquiry at the Crowns request, where the reason was concern
    about CI privilege, not to respond to the late
Dawson
application. The
    appellants asserted that attributing all of this time to the Crown would result
    in total Crown (14.5 months) and institutional (11 months) delay in the OCJ of
    over 25 months, which is manifestly unreasonable. The appellants also contended
    that, while the delay in the Superior Court was not relied on, given the entire
    period of delay as well as periods McManus spent in custody, prejudice ought to
    have been inferred.

[18]

While
    the Crown agreed that the application judge erred in describing the test, the
    Crown argued that the application judge nevertheless correctly identified and
    applied the
Morin
factors and framework. The Crown acknowledged certain
    calculation errors by the application judge with the result that, accepting her
    characterization of responsibility for the delays, she ought to have found
    defence delay of 15 months, ten days and Crown delay of 11 months. The Crown
    disagreed that there was any other error in the attribution of delay, in
    particular asserting that the application judge was correct to split
    responsibility for the delay resulting from the second adjournment of the
    preliminary inquiry between the Crown and the defence.

[19]

Finally,
    the Crown asserted that there was no basis to infer prejudice where institutional
    delay only marginally exceeded the
Morin
guidelines and the appellants
    were content with the pace of the proceedings. As for McManuss incarceration,
    this was largely in relation to other charges and in any event this was not
    relied on as prejudice before the application judge.

(c)

The
Jordan
Framework

[20]

Following
    argument of the appeal, the Supreme Court released its decision in
R. v.
    Jordan,
2016 SCC 27, 398 D.L.R. (4th) 381, setting out a new framework for
    determining s. 11(b) applications.

[21]

The
    Supreme Court set a presumptive ceiling of 30 months of delay for cases proceeding
    to trial in the Superior Court, beyond which the delay is presumptively
    unreasonable:
Jordan
, at paras. 5, 46. The Crown may rebut this
    presumption by establishing exceptional circumstances:
Jordan
, at
    para. 68.

[22]

The
    first step is to calculate the total delay from the charge to the actual or
    anticipated end of trial, subtracting any defence delay to arrive at the net
    delay:
Jordan
, at para. 47;
R. v. Coulter
, 2016 ONCA 704, at
    para. 35. If the net delay exceeds the ceiling, unless the Crown can establish
    exceptional circumstances the delay is unreasonable and a stay of proceedings
    must follow:
Jordan
, at para. 47.

[23]

Exceptional
    circumstances are circumstances outside the Crowns control in the sense that
    (i) they are reasonably unforeseen or reasonably unavoidable and (ii) the
    Crown cannot reasonably remedy the delay emanating from those circumstances
    once they arise:
Jordan
, at para. 69. The circumstances need not be rare
    or entirely uncommon and will depend on the trial judges good sense and
    experience. The list of exceptional circumstances is not closed but, in
    general, they fall under two categories: discrete events and particularly
    complex cases:
Jordan
, at paras. 69, 71. Discrete events are deducted
    from the net delay to arrive at the remaining delay, for the purpose of
    determining whether the ceiling has been exceeded:
Jordan
, at para.
    75;
Coulter
, at paras. 38, 56. Where the Crown can demonstrate that a
    case was particularly complex, the delay may be justified and no stay will
    issue:
Jordan
, at para. 80.

[24]

Where
    the remaining delay exceeds the presumptive ceiling and the charges were
    brought prior to the release of the
Jordan
decision, a transitional
    exceptional circumstance will apply where the Crown satisfies the court that
    the time the case has taken is justified based on the parties reasonable
    reliance on the law as it previously existed:
Jordan
, at para. 96.
    This requires a contextual and flexible assessment which is sensitive to the
    manner in which the previous framework was applied and recognizes that parties
    cannot be judged strictly against a standard of which they had no notice. The
    release of the
Jordan
decision should not automatically transform
    what would previously have been considered a reasonable delay into an
    unreasonable one:
Jordan
, at paras. 96, 102.

(d)

Positions of the Parties Post-
Jordan

[25]

While
    this decision was under reserve and following the release of
Jordan
, the
    panel invited and received written submissions from counsel on the application
    of the
Jordan
framework to this ground of appeal.

[26]

The
    parties agree that the period that is relevant to the s. 11(b) analysis is the
    entire period from when the appellants were charged with the offences until
    disposition of the charges. That period is 48 months, 24 days, and well exceeds
    the presumptive threshold of 30 months for a matter tried in the Superior Court.

[27]

The
    appellants assert that they were responsible for only nine months of delay,
    consisting of eight months, one week (May 11, 2011  January 18, 2012) when the
    first preliminary inquiry date was adjourned at defence counsels request
    because of a potential conflict of interest; and an adjournment of
    approximately three weeks during the preliminary inquiry (January 25, 2013  February
    13, 2013) when McManuss counsel mistakenly sent a letter to the Crown
    indicating he would not be available, which resulted in witnesses being called
    off. After deducting defence delay, the remaining period is just under 40
    months. The appellants allege that a substantial part of the overall delay was
    caused by the late vetting and disclosure of the search warrant. They also note
    that some delay resulted because both defence and Crown counsel underestimated
    the time required for the preliminary inquiry.

[28]

The
    appellants submit that there are no discrete events that would qualify as
    exceptional circumstances, and that the case was straightforward and not
    complex. Further, they submit that there is no transitional exceptional
    circumstance where the Crown might demonstrate its reliance on the
Morin
principles to make decisions it would not have made under the new regime. In
    the absence of a transitional exceptional circumstance, the delay exceeded the presumptive
    ceiling by almost ten months, and was therefore unreasonable.

[29]

The
    Crown submits that there were 13 months of defence delay, leaving a net delay
    of approximately 36 months. In addition to the nine months of defence delay
    acknowledged by the appellants, there was also a defence-requested adjournment
    of one week between October 29, 2010 and November 5, 2010. The Crown also
    contends that the defence was responsible for three months and 21 days of the
    nine month delay following the Crown request for an adjournment of the
    preliminary inquiry (January 18, 2012 to October 17, 2012).

[30]

The
    Crown also asserts there were exceptional circumstances. If this court does not
    agree the defence was responsible for any of the delay between January 18, 2012
    and October 17, 2012 in relation to the second and third preliminary inquiry dates,
    that period should be characterized as a discrete event that was outside the
    Crowns control and not reasonably foreseen.

[31]

Finally,
    the Crown relies on transitional exceptional circumstances. The few days that
    the remaining delay exceeds the 30 month threshold after deducting defence
    delay and delay due to exceptional circumstances is not unreasonable. The Crown
    submits that the Supreme Court in
Jordan
was clear that the new
    framework should not automatically transform what would previously have been
    considered reasonable delay into unreasonable delay. When the significant delay
    the defence caused in the Provincial Court and the expeditious proceedings in
    the Superior Court are viewed together, the total delay was not unreasonable. Further,
    the lightning-fast trial dates in the Superior Court demonstrated attention to
    the importance of timely proceedings, with a six month wait to trial that was below
    the
Morin
threshold and which rendered the overall delay reasonable in
    the circumstances.

(e)

Analysis Using the
Jordan
Framework

(i)

Defence Delay

[32]

Defence
    delay consists of delay that is caused or waived by the defence. Defence-caused
    delay includes both conduct that directly causes delay and conduct that is
    deliberate and calculated to delay the trial. In addition, when the Crown and
    court are ready to proceed but the defence is not, such delay may be attributed
    to the defence:
Jordan
,

at paras. 61-64. Only the latter type of defence delay is engaged in this
    case, as there is no question of the defences taking any steps to deliberately
    delay the proceedings. And, there is no question of waiver. While there was
    evidence of defence acquiescence when dates were set in the OCJ, this is a
    contextual factor that will be addressed in the discussion of transitional exceptional
    circumstances and final assessment of the reasonableness of the delay.

[33]

I
    would attribute the following periods of delay, which are not really in
    dispute, to the defence: (i) the one week delay between October 29, 2010 and
    November 5, 2010, when defence counsel requested an adjournment to set the
    original date for the preliminary inquiry; (ii) eight months, one week between
    May 11, 2011 and January 18, 2012 for the defence-requested adjournment of the
    preliminary inquiry due to a conflict of interest in representing both accused;
    and (iii) 19 days between January 25, 2013 and February 13, 2013 when a
    continuation of the preliminary inquiry was adjourned after McManuss counsel
    sent a letter to the Crown mistakenly indicating he was unavailable to continue
    the preliminary inquiry. These periods total nine months, three days.

[34]

The
    disputed period is between January 18, 2012 and October 17, 2012, a delay of
    approximately nine months, which the application judge allocated partly to the
    Crown and partly to the defence. It is appropriate to outline in some detail
    what happened during the court attendance leading to the adjournment.

[35]

The
    preliminary inquiry had been adjourned to take place for one day on January 18,
    2012. Fifteen minutes before the matter was to proceed, defence counsel alerted
    the Crown to a potential problem in the vetted ITO (which had been in the
    defence possession since mid-September 2010). The transcript of the attendance
    reveals that the Crown provided somewhat vague information about an issue
    raised by defence counsel, and suggested that an adjournment would be in the
    interests of everybody involved.  The presiding judge was hesitant to accede
    to the request, and expressed concern that an adjournment was not beneficial to
    the administration of justice. Both Crown and defence counsel then offered more
    details, explaining that it was a sensitive issue related to the vetting of the
    search warrant, and counsel for McManus noted that he understood why Crown
    counsel was making the request. Counsel for Chapman said that she took the
    same position, and that she understood the predicament and had no issue
    with the Crowns request for an adjournment.

[36]

In
    the course of submissions on the requested adjournment, Crown counsel also advised
    that, two days earlier, Chapmans counsel had filed a
Dawson
application
    to cross-examine the affiant of the ITO. This was not, however, mentioned as a
    reason for the adjournment request, and there are indications in the transcript
    that the deponent was available and was to testify at the preliminary inquiry
    in any event. Indeed, Crown counsel said that the adjournment is clearly on
    me. The adjournment was granted.

[37]

A
    new date for the preliminary inquiry was set a week later, to take place on
    October 17, 2012. The total delay arising from this adjournment of the
    preliminary inquiry was eight months, 28 days. The application judge attributed
    five months, seven days to the Crown and four months, 21 days to the defence
    because of the late
Dawson
application (in fact, there was a
    calculation error and the delay after deducting Crown delay was only three
    months, 21 days).

[38]

With
    respect to this period, I agree with the appellants that the application judge
    erred in attributing any part of the delay to the defence. The late
Dawson
application
    by Chapman does not appear to have contributed to the delay. I also reject the
    Crowns submission that the defence was partly responsible because defence
    counsel had the vetted ITO for over a year before raising a concern. The Crown
    also had the ITO and could have identified the potential problem. While it
    turned out that the concern was unfounded, at the time the issue was raised all
    counsel believed an adjournment was required to protect CI privilege, and the defence
    copies of the vetted ITO were returned to the Crown for further review.

[39]

The
    net delay, after deducting defence delay of nine months, three days, is
    therefore 39 months, 21 days. Since this exceeds the threshold of 30 months,
    the next issue is whether there were exceptional circumstances.

(ii)

Exceptional Circumstances

[40]

I
    agree with the appellants that this case was not particularly complex such that
    the presumption of unreasonableness would be rebutted by this branch of the
    exceptional circumstances test under the new
Jordan
analysis. The main
    issue is therefore whether there were any discrete events that would qualify
    as exceptional circumstances.

[41]

I
    return to consider the period from January 18, 2012 to October 17, 2012, when
    the preliminary inquiry was adjourned at the Crowns request as a result of the
    possible CI issue in the vetted ITO. In my view, this entire period of delay resulted
    from a discrete event amounting to exceptional circumstances under the
Jordan
framework.

[42]

It
    is apparent from the transcript of the attendance that the circumstances were both
    reasonably unforeseen and unavoidable, and that Crown counsel could not
    reasonably remedy the delays emanating from the circumstances once they arose:
Jordan
,
    at para. 69.

[43]

While
    disclosure was the responsibility of the Crown and there was significant delay
    and indeed apparent complacency in the Crowns approach to disclosure at the
    outset of the proceedings, there is no indication that anyone had turned their
    minds to the possible release of CI information before the appellants counsel
    identified the potential issue 15 minutes before the start of the preliminary inquiry.
    No one alleged any error or carelessness on the part of the Crown in the
    vetting of the ITO; indeed, as I have already noted, it turned out that the
    concern about disclosure of a CIs identity was unwarranted. Once the issue was
    raised, an adjournment was inevitable. CI privilege is of such fundamental
    importance to the criminal justice system that it cannot be balanced against
    other interests relating to the administration of justice:
R. v. Leipert
,
    [1997] 1 S.C.R. 281, at para. 14.

[44]

Further,
    while Crown counsel asked for the adjournment and even asserted this is clearly
    on me, the circumstances necessitating the adjournment were outside the
    Crowns control. The court is not bound by erroneous concessions by the Crown
    in allocating periods of delay:
R. v. Tran
, 2012 ONCA 18, 288 C.C.C. (3d)
    177, at para. 31. As the issue was identified only minutes before the
    preliminary inquiry was to begin, the Crown could not address the issue in a
    way that would avoid the necessity of an adjournment. The Crown could not
    therefore reasonably remedy or mitigate the delay emanating from this issue.

[45]

These
    circumstances therefore qualify as a discrete event in the category of
    exceptional circumstances within the
Jordan
framework. As a result,
    the period of eight months, 28 days is deducted from the net delay of 39
    months, 21 days, resulting in a remaining delay of 30 months and 23 days.

[46]

Since
    the remaining delay remains above the 30 month threshold, the question is
    whether transitional exceptional circumstances exist that would render the
    delay reasonable.

(iii)

Transitional Exceptional Circumstances

[47]

To
    establish transitional exceptional circumstances, the Crown must satisfy the
    court that the time the case has taken is justified based on the previous legal
    framework, upon which the parties reasonably relied. The assessment is
    necessarily contextual and should account for the manner in which that
    framework was applied:
Jordan
, at para. 96;
R. v. Williamson
,
    2016 SCC 28, 398 D.L.R. (4th) 577, at para. 24.

[48]

Where,
    as here, the entire period of delay occurred, and the s. 11(b) application was
    determined, pre-
Jordan
, the determination of whether there were
    transitional exceptional circumstances involves an assessment of the delay
    under the previous
Morin
framework. This entails consideration of the application
    judges findings (which are reviewable on the basis of palpable and overriding
    error) and her allocations of responsibility for delay (reviewable on a
    standard of correctness):
Tran
, at para. 19.

[49]

Although
    the application judge erred in relation to her attribution of time to the
    defence for the delay stemming from the adjournment relating to the possible CI
    issue, her analysis and findings provide context for the evaluation of whether
    transitional exceptional circumstances are present.

[50]

The
    application judge found that the institutional delay in the OCJ of just over 11
    months was above the guideline (for matters in the Provincial Court) of eight
    to ten months, but that it was not unacceptable.  She noted that, in the
    particular circumstances of this case, the delay attributable to the Crown was
    concerning in the overall scheme but was not egregious. These circumstances
    included the appellant McManuss re-arrest on additional charges relating to
    breach, considerable manoeuvring by his counsel to obtain bail on the new
    charges and to marry up to the existing charges, and at the very least there
    being an acquiescence with regard to McManuss court appearances. She noted
    that the Crown was prepared to proceed at the first preliminary inquiry date,
    which was adjourned after a defence request. The Crowns subsequent adjournment
    request was based on a concern relating to preservation of the identity of a CI,
    and although this frustrated the trial process, it was necessary. The
    application judge did not find any prejudice, actual or inferred, and she noted
    that the appellants were charged with serious indictable offences. While the
    application judge erred in stating that a stay of proceedings must only be
    granted in the clearest of cases, her misstatement does not appear to have
    driven her analysis or the conclusion that the delay was not unreasonable.
    Indeed, she identified and applied the relevant
Morin
principles.

[51]

In
Williamson
, the Supreme Court applied the
Jordan
framework to
    a case that was in the system prior to the new framework. The s. 11(b)
    application was dismissed at first instance. This court, applying the pre-
Jordan
framework, disagreed with that result and entered a stay on the basis that the
    25 months of institutional delay exceeded the upper end of the
Morin
guideline of 14-18 months for a Superior Court proceeding, by about seven
    months, and was excessive. The Supreme Court, applying the post-
Jordan
framework, upheld the stay. Crown counsel was complacent, and made no effort to
    mitigate delay in the Superior Court, even after significant delay in the Provincial
    Court. The Crowns lack of initiative contrasted with diligence on the part of
    the defence to move matters forward, and there were only 1.5 months of delay
    attributed to the defence. The Supreme Court held that, although it was a
    close case, and there was no significant prejudice to the accused, the previous
    state of the law could not justify the nearly three years it took to bring the
    accused to trial on relatively straightforward charges:
Williamson
, at
    paras. 25-30.

[52]

Here,
    by contrast, applying the
Morin
framework, the delay was not
    unreasonable. First, I would calculate the institutional and Crown delay as
    within or only slightly exceeding the
Morin
guideline of 14-18 months.
    Although a reasonably straightforward prosecution, there was a joint
    underestimation of the time required for the preliminary inquiry, which once
    underway had to be adjourned three times for two or three months each time to
    address issues that arose and to accommodate argument. It is relevant that these
    adjournments were necessitated by inaccurate time estimates by counsel and developments
    in the case, and not by constrictions on institutional resources: see
Tran
,
    at paras. 54-57. As such, the period when the preliminary inquiry was underway
    but adjourned to be continued, that the application judge identified as
    institutional delay (at least three months), might better be characterized under
    the
Morin
framework, as inherent or neutral delay. Further, five
    months of the delay the application judge attributed to the Crown was
    justifiable (as noted earlier with respect to the CI issue) and can be
    characterized as neutral. There was no unreasonable delay in the Superior Court,
    which the application judge was justified in treating as neutral delay.

[53]

Apart
    from the Crowns unreasonable delay in disclosing the ITO, which the
    application judge took into account, there was nothing to suggest an attitude
    of complacency by the Crown. There was no significant disparity between the
    conduct of the Crown and the defence in their approach to the proceedings. As
    the application judge noted, there was at the very least acquiescence by
    McManuss counsel and the defence raised concerns about delay on the record
    only after the proceedings reached the Superior Court. Indeed, in
Williamson
,
    the Supreme Court referred to the efforts of the defence to move the case along
    as a factor that informed whether a transitional exceptional circumstance
    justified a delay above the presumptive ceiling: at para. 29. While there was
    no waiver of delay by the defence, its acquiescence is relevant to and supports
    the application judges refusal to infer prejudice:
Morin
,

at
    pp. 802,803. As for actual prejudice resulting from deprivation of liberty, this
    was not argued at first instance, and the bulk of McManuss incarceration while
    awaiting trial resulted from new charges.

[54]

After
    taking into consideration the exceptional circumstances associated with one of
    the adjournments of the preliminary inquiry, the remaining delay exceeds the
    presumptive limit under
Jordan
by 23
    days
. Considering the case under the prior framework, I am
    satisfied that the Crown has rebutted the presumption of unreasonable delay
    based on transitional exceptional circumstances.

[55]

Accordingly,
    I would reject this ground of appeal.

(2)

Issue 2: Did the Trial Judge Err in Qualifying an Officer Involved in
    the Investigation as an Expert Witness and Admitting his Opinion?

(a)

Ruling of the Trial Judge

[56]

At
    the time of their arrest, McManus had an iPhone and Chapman a Blackberry.
    Forensic analysis of the devices turned up a large number of text messages. The
    Crown proposed to introduce the expert opinion of D.C. Bullick, an officer
    involved in the investigation of the offences, as to the meaning of certain
    words used in the text messages. The defence objected to the evidence, and a
voir
    dire
was held to determine admissibility.

[57]

The
    principal objection was that D.C. Bullick was not impartial and independent,
    and therefore ought not to be qualified to provide an expert opinion. This was
    framed by the defence as a question of bias. D.C. Bullick was a member of the
    surveillance and warrant execution teams involved in the investigation. He discovered
    the cocaine in the apartment, and acted as the exhibit officer at the scene.
    D.C. Bullick had known McManus for approximately four years, and believed he
    was a drug trafficker. At a bail hearing for McManus a few months before trial,
    D.C. Bullick testified that he believed McManus was involved in organized
    crime. D.C. Bullick was present at the conclusion of the preliminary inquiry,
    when the presiding judge observed that the Crowns case was not strong. This event
    prompted D.C. Bullick, on his own initiative, to prepare a report analyzing the
    text messages, something he had not done at an earlier stage.

[58]

All
    of these circumstances were explored with D.C. Bullick in his cross-examination
    on the
voir dire
. While he acknowledged that his specific knowledge of
    McManuss activities and associations presented a delicate line, he confirmed
    the importance of honour and being truthful, asserting that he was able to
    provide an expert opinion.

[59]

During
    argument on the
voir dire
,

the trial judge acknowledged the defence argument that bias is relevant to
    the admissibility of an expert opinion, but repeatedly suggested that defence
    counsel should simply explore D.C. Bullicks alleged bias in cross-examination
    before the jury. Defence counsel asserted that that would put the defence in a
    position where they would have to let the jury know all kinds of different things
    about Mr. McManus. Ultimately, the trial judge qualified D.C. Bullick to
    provide expert opinion evidence on terminology and drug culture. Although the
    trial judge indicated written reasons would be forthcoming, he gave no reasons
    for his ruling.

[60]

D.C.
    Bullick testified at trial about his involvement in the investigation of the
    offences. As an expert witness, he provided his opinion that certain text
    messages were indicative of drug trafficking by both appellants. He testified that
    phrases such as are you good and what ya want had drug-related
    connotations. He also testified that words like half, bling, paper,
    work, cake, and cook were code words used in the context of dealing in narcotics.
    Defence counsel cross-examined D.C. Bullick on his alleged bias as a member of the
    investigative team who had found the drugs and believed McManus was guilty. He
    did not, however, address the fact that the officer knew McManus for four years
    and believed he was a drug trafficker and that he was involved in organized
    crime. When counsel attempted to elicit information about why and when D.C.
    Bullick decided to prepare an expert report, the trial judge refused to permit any
    questions that would reveal to the jury the comments by the preliminary inquiry
    judge, on the basis that this would elicit hearsay.

(b)

Positions of the Parties

[61]

The
    appellants contend that the trial judge erred in permitting D.C. Bullick to
    testify as an expert witness when he had an obvious stake in the prosecution.
    The appellants submit that the trial judge did not properly consider the fourth
Mohan
criterion (
R. v. Mohan
, [1994] 2 S.C.R. 9), and that in
    the circumstances D.C. Bullicks evidence about the meaning of various words
    used in the appellants text messages ought not to have been introduced at
    trial as he was disqualified from providing an expert opinion by bias. Further,
    requiring defence counsel to deal with the issue in cross-examination was not
    sufficient in this case, as D.C. Bullick could not be cross-examined properly
    without introducing prejudicial bad character evidence, and the trial judge
    placed unfair limits on the cross-examination.

[62]

The
    Crown contends that there was no error in the trial judges qualification of
    D.C. Bullick as an expert witness, and in admitting his opinion about the
    meaning of certain words used in the text messages as an indication of drug
    trafficking. There was no reason to disqualify him simply because he played a
    role in the investigation. As for the fourth
Mohan
criterion, there
    was no realistic concern that D.C. Bullick would not comply with his duty to
    be unbiased after he testified in the
voir dire
that he was cognizant
    of his role and the need to be independent. Finally, the appellants had the
    opportunity to cross-examine on the issue of bias, even if they felt it
    necessary to avoid addressing certain areas.

(c)

The Relevant Principles

[63]

To
    be admitted into evidence, an experts opinion must be (1) logically relevant
    to an issue in the proceedings; (2) necessary to assist the trier of fact; (3)
    not precluded by an exclusionary rule; and (4) tendered by a properly qualified
    expert:
Mohan
, at pp. 20-25. The trial judge also has residual
    discretion to exclude evidence that meets these criteria where the benefits of
    receiving the evidence are outweighed by the potential risks inherent in the
    introduction of the evidence:
Mohan
, at p. 21. This is the two-stage
    analytical structure for the admissibility of expert opinion evidence recognized
    by this court in
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at paras.
    76-77, and by the Supreme Court in
White Burgess Langille Inman v. Abbott
    and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 22-24.

[64]

In
White Burgess
, at para. 32, Cromwell J. described an experts duty to
    provide opinion evidence that is fair, objective, and non-partisan:

Underlying the various formulations of the duty are three
    related concepts: impartiality, independence and absence of bias. The experts
    opinion must be impartial in the sense that it reflects an objective assessment
    of the questions at hand. It must be independent in the sense that it is the
    product of the experts independent judgment, uninfluenced by who has retained
    him or her or the outcome of the litigation.  It must be unbiased in the
    sense that it does not unfairly favour one partys position over another.

[65]

Cromwell
    J. held that an experts lack of independence and impartiality must be
    considered at the gatekeeper stage, and goes to the admissibility of the
    evidence in addition to being considered in relation to the weight to be given
    to the evidence if admitted:
White Burgess
, at para 45.

[66]

An
    assessment of independence, impartiality, and bias is relevant to the fourth
    part of the
Mohan
test in determining whether the expert is properly
    qualified, and also factors into the balancing of benefit and risks of such
    evidence:
White Burgess
, at paras. 53-54;
R. v. Shafia
, 2016
    ONCA 812, at para. 228. A person who opposes the admission of the evidence on
    the basis of bias has the burden of establishing a realistic concern that the
    witness is unwilling or unable to comply with the duty and the proffering party
    must rebut this concern on a balance of probabilities to satisfy the
Mohan
test
    for admissibility:
White Burgess
, at para. 48.

[67]

While
    an interest in or connection with the litigation does not automatically render
    the proposed expert evidence inadmissible, the court must consider whether the
    relationship or interest would result in the expert being unable or unwilling
    to carry out his or her primary duty to provide fair, non-partisan, and
    objective assistance:
White Burgess
, at paras. 49-50;
R. v. Abbey
,
    at para. 87. There is a heightened concern with police expert witnesses to
    ensure their ability to offer impartial expert evidence: see, for example
R.
    v. Tesfai
, 2015 ONSC 7792 (where measures taken to ensure the impartiality
    of the officers opinion in a drug case were considered adequate) and
R. v.
    T.A.
, 2015 ONCJ 624 (where the officer qualified to give expert opinion
    evidence was not involved in the investigation or the laying of charges and did
    not discuss his analysis with other officers involved in the project).

[68]

Finally,
    the admissibility decision is entitled to deference on appellate review, unless
    there is an error in principle or the decision is unreasonable:
Abbey
,
    at para. 97;
Shafia
, at para. 234.

(d)

The Principles Applied

[69]

Regrettably,
    the trial judge did not properly consider the fourth
Mohan
criterion
    and did not fulfill his proper role as gatekeeper in respect of the proffered
    expert opinion. He did not give any real consideration to the question of D.C.
    Bullicks objectivity and ability to give independent and unbiased expert
    evidence and he did not consider the potential prejudice to the appellants if
    D.C. Bullick were allowed to testify in a dual capacity  both as an
    investigator as to several critical pieces of evidence forming part of the
    Crowns case and as an expert witness.

[70]

D.C.
    Bullicks prior involvement with McManus and direct participation in the
    investigation and prosecution would immediately give rise to a concern about the
    officers ability, despite his best intentions, to provide an impartial expert
    opinion. As explained in
White Burgess
, at para. 50, the question at
    the threshold stage is whether the relationship or interest results in the
    expert being unable or unwilling to carry out his or her primary duty to the
    court to provide fair, non-partisan and objective assistance. Further, it is
    the nature and extent of the interest or connection with the litigation or a
    party thereto which matters: at para. 49. While D.C. Bullick may have
    testified that he was willing and able to provide an independent opinion,
    ultimately it was up to the trial judge to evaluate whether he could, in fact,
    do so.

[71]

D.C.
    Bullicks position as a police officer did not disqualify him from giving
    expert evidence. However, the evidence elicited in the
voir dire
demonstrated that D.C. Bullick was neither independent nor impartial. D.C.
    Bullick testified that he had known McManus longer than four years, and that he
    believed McManus was a drug trafficker. He testified about being involved in
    investigations of McManus in the past that led to charges, and that he prepared
    his report in response to the preliminary inquiry judges comment that the
    Crowns case was not strong. This testimony suggested that D.C. Bullick had a
    strong interest in seeing that McManus was convicted. His opinion could not
    help but be coloured by facts and information that did not form part of the
    trial record. Finally, his evidence was important and central to the Crowns
    case. In submissions on the
voir dire
,
    Crown counsel characterized it

as filling in an extremely
    important gap in the Crowns case, and later stated that the interpretation of
    the cellphone information was very strong evidence and important evidence for
    the Crown.

[72]

I
    am satisfied that there was a realistic concern that D.C. Bullick was unable
    to comply with the duty of an expert to provide independent, impartial and
    unbiased evidence, and that the Crown did not rebut this concern on a balance
    of probabilities, to satisfy the fourth
Mohan
criterion for
    admissibility:
White Burgess
, at paras. 48, 53.

[73]

It
    is indeed surprising that the Crown sought to rely on the expert evidence of
    D.C. Bullick. The evidence that D.C. Bullick provided could easily have been
    offered by another witness who had no connection to the case. In fact, the
    Crown had already sought a report from an officer who had no involvement in the
    investigation who gave expert evidence at trial, without objection, on the
    interpretation of coded language in the documents alleged to be debt lists, all
    based on evidence she observed at trial.

[74]

Instead
    of ruling the expert opinion evidence inadmissible, the trial judge left the
    issue of bias to be addressed in D.C. Bullicks cross-examination before the
    jury. In doing so, the trial judge failed to appreciate the practical impossibility
    that would present. To effectively explore the grounds of D.C. Bullicks bias
    and partiality, the defence would necessarily have elicited prejudicial bad
    character evidence about McManus before the jury.

[75]

In
    all of these circumstances, the evidence ought not to have been admitted. I
    would therefore give effect to this ground of appeal.

(3)

Issue 3: Did the Trial Judge Err in the
Corbett

Ruling?

(a)

Decision of the Trial Judge

[76]

McManus
    brought a
Corbett
application at trial, submitting that the trial
    judge should edit his criminal record to exclude his prior drug possession and
    trafficking convictions from the jury should he testify in his own defence. His
    counsel conceded that a 2012 conviction for failing to comply with a
    recognizance and a 2008 conviction for possession of proceeds of crime should
    not be excluded, but argued that the jurys knowledge of the drug convictions
    would lead to propensity reasoning and have a prejudicial impact. The Crown
    submitted that restricting cross-examination to the two non-drug related
    convictions would mislead the jury about McManuss character, and that the
    vigorous cross-examination of D.C. Bullick justified introducing his entire
    record.

[77]

The
    trial judge ruled that the Crown could cross-examine McManus on his 2012 conviction
    for failure to comply, and his 2008 conviction for possession of cocaine for
    the purposes of trafficking. The trial judge did not provide any reasons for
    his ruling.

[78]

The
    following day, defence counsel sought clarification of the ruling. After
    confirming that the trial judge had in fact decided that the Crown could
    cross-examine his client on the one drug conviction, defence counsel informed
    the court that based on [his] instructions and based on that ruling, McManus
    would not be testifying. Chapman also did not testify at trial.

(b)

Positions of the Parties

[79]

The
    appellants contend that the trial judge erred in ruling that the Crown could
    cross-examine McManus on one of his prior drug convictions, which ought to have
    been excluded on a proper
Corbett
analysis.

[80]

The
    Crown acknowledged in argument on appeal that the trial judge probably misspoke
    when he identified McManuss prior conviction for a drug offence as one of the
    two offences in respect of which he could be cross-examined. However, the Crown
    says that the ruling was nevertheless reasonable. Once it was apparent the
    appellants defence was that the drugs that were seized belonged to someone
    else, cross-examination of McManus on all of his convictions, including the
    drug convictions, would have been justified. The Crown relies on two decisions
    of this court:
R. v. Parsons
(1993), 84 C.C.C. (3d) 226 (Ont. C.A.),
    at p. 238 and
R. v. Paul
, 2009 ONCA 443, 249 O.A.C. 200, at paras. 14,
    18.

(c)

The Relevant Principles

[81]

Pursuant
    to s. 12 of the
Canada Evidence Act
,

R.S.C. 1985, c. C-5, a witness may be questioned as to whether he or she
    has been convicted of a criminal offence. Typically, the relevance of such
    evidence is in respect of the witnesss credibility, and the evidence cannot be
    used as bad character evidence or for propensity reasoning. Under
Corbett
,

a court can be asked to
    exclude parts of a criminal record where its probative value is outweighed by
    its prejudicial effect. As the court noted in
Corbett
,
a jury is presumed to follow the courts
    instructions about the proper use of evidence of prior convictions:
Corbett
,
    at p. 690. The right to a fair trial is the context in which the balancing
    exercise must be effected:
R. v. Saroya
(1994), 36 C.R. (4th) 253 (Ont. C.A.)
, at para. 5.

[82]

The
    question in each case is whether excision of the conviction in question would
    leave the jury with incomplete and therefore incorrect information about an accuseds
    credibility as a witness. Relevant factors include: the nature of the previous
    conviction; its remoteness or nearness to the present charge; and the similarity
    to the offence charged:
Corbett
,

at pp. 740-744. Another potential factor identified in
Corbett
is
    the need to maintain a balance between the position of the accused and that of
    a Crown witness who has been subjected to a credibility attack on the basis of
    his or her criminal record or otherwise, although this factor should not
    override the concern for a fair trial:
Corbett
, at pp. 742-744. Any
    attack on the integrity of a Crown witness is not sufficient to make the
    accuseds entire record admissible; rather, what is contemplated is an attack
    on the Crown witnesss credibility based on his or her character, especially as
    disclosed in his or her criminal record:
R. v. Brown
(2002), 166
    C.C.C. (3d) 570 (Ont. C.A.), at para. 24. See also
R. v. Bomberry
,
    2010 ONCA 542, 78 C.R. (6th) 191, at para. 50.

[83]

In
R. v. Brand
(1995), 98 C.C.C. (3d) 477 (Ont. C.A.), this court held
    that a trial judge erred by rejecting the
Corbett
application of an
    accused charged with trafficking cocaine who sought to exclude three prior
    convictions for trafficking in narcotics. This court noted that the three drug
    convictions had no probative value with respect to the accuseds credibility
    but were highly prejudicial. See also
R. v. Wilson
(2006), 210 C.C.C.
    (3d) 23 (Ont. C.A.), at para. 33.

[84]

Typically,
    deference is owed to a trial judges determination of a
Corbett
application,
    except where the decision is made on a wrong principle:
Wilson
, at para.
    32;
R. v. Talbot
, 2007 ONCA 81, 217 C.C.C. (3d) 415, at para. 37. However,
    no deference is owed where the trial judge failed to give reasons.

(d)

The Principles Applied

[85]

Although
    the trial judges application of the
Corbett
principles was a matter
    of judicial discretion, appellate intervention is required when a trial judge
    fails to consider relevant factors in the exercise of that discretion. In this
    case, there is no place for deference, and no indication that the trial judges
    discretion was exercised reasonably because no reasons were provided for his
    decision. Indeed, in light of this courts jurisprudence, the ruling is
    unreasonable:
Brand
, at para. 8;
Brown
, at paras. 24-26;
Wilson
,
    at paras. 31-34.

[86]

The
    trial judges decision to include reference to a 2008 conviction for possession
    for the purpose of trafficking, but to exclude a contemporaneous conviction for
    possession of the proceeds of crime, especially when defence counsel had
    conceded the admissibility of the latter conviction, is puzzling. It is likely that
    the trial judge misspoke, and that he repeated his error even after defence
    counsel requested clarification.

[87]

In
    weighing the prejudicial effect and probative value of admitting the 2008 drug
    conviction, there is no question that the balance favoured exclusion. The
    nature and timing of the drug conviction increased the risk of propensity
    reasoning by the jury. It would have been sufficient for the jury to be made
    aware of the other non-drug offences in McManuss criminal record. This
    awareness would allow the jury to properly assess his credibility without
    risking propensity reasoning based on knowledge of a recent conviction for a
    drug offence that was virtually identical to the charges before the court.

[88]

I
    turn to the Crowns assertion that McManus could have been cross-examined on
    his entire criminal record once it was asserted that the drugs belonged to someone
    else, and, in particular, the reliance on this courts decisions in
Paul
and
Parsons.

[89]

In
Corbett
the Supreme Court referred as a possible relevant factor in
    the probative value versus prejudice analysis, to the need to maintain a
    balance between the position of the accused and that of a Crown witness who has
    been subjected to a credibility attack. In
Paul
, a case relied on by
    the Crown, this court observed that, while the defence had not attacked the
    credibility of Crown witnesses, it proposed to point the finger of guilt at a
    third party and no doubt would include a vigorous attack on the credibility of
    that person, to suggest he was the perpetrator. The court concluded it would be
    unfair to prevent the use of the accuseds criminal record (with the most
    prejudicial parts having been excised) to assess his own credibility.

[90]

Paul
does not stand for the principle advocated by the Crown that, once the defence
    pointed the finger at Averill, McManuss entire criminal record would have been
    admissible as a matter of fairness. This was not a case where there was an
    anticipated vigorous attack on a third partys credibility
by the defence
,
    using his criminal record, or otherwise. To the contrary, Averill was put
    forward as a defence witness with the intention that the jury accept his
    evidence.

[91]

Nor
    does this courts decision in
Parsons
assist the Crown.
Parsons
involved propensity evidence. The defence sought to tender evidence of a third
    party suspect, consisting of that persons penitentiary ID card and the fact of
    his arrest for similar robberies at the time. This court concluded that the
    trial judge was correct to rule that, if evidence relating to the third partys
    propensity to commit robberies were introduced into evidence, fairness dictated
    that the very similar evidence the Crown possessed relating to the appellant
    could also be introduced. To rule otherwise would leave the jury with the
    highly misleading impression that [the third party] alone had a propensity to
    commit robberies, whereas in truth he was part of a gang that committed
    robberies and the appellant was part of that gang: at para. 25.

[92]

Here,
    the appellants did not rely on Averills propensity to have committed the
    offence such that McManuss own propensity might have been engaged. Rather, the
    defence put forward Averill knowing that he would testify that he in fact owned
    the drugs in question. Averills criminal record was not evidence of his
    propensity to commit the offence. As the trial judge properly instructed the
    jury, it could only be used to assess Averills credibility.

[93]

For
    these reasons, I am satisfied that the trial judge erred in his
Corbett
ruling.
    McManus and Chapman decided not to testify at the trial. In McManuss case, the
    decision was made after clarification of the
Corbett
ruling. The error
    in the trial judges
Corbett
ruling is an error affecting the fairness
    of McManuss trial, and I would give effect to this ground of appeal in
    McManuss appeal.

[94]

With
    respect to Chapman, although her counsel in argument on the appeal relied on
    the
Corbett
ruling error, she did not participate in the
Corbett
application
    at trial, nor was there any indication that her decision not to testify was in
    any way related to the disposition of McManuss
Corbett
application.
    In these circumstances, her reliance on this error in support of her appeal is
    doubtful. As I would allow Chapmans appeal for other reasons, it is
    unnecessary to say anything further about Chapmans reliance on this ground of
    appeal.

(4)

Issue 4: Was the Trial Judges Charge About the Defence Witness Unfair?

(a)

The Charge to the Jury

[95]

Averill
    was the only defence witness at trial. He testified that, while he lived
    somewhere else, he informally subleased the Waterloo Street apartment for use
    as a safe house. He said that Chapman would sometimes meet him at the apartment
    to have sex, and that he allowed her to stay there when she worked in London
    since she lived out of town. He testified that McManus had been in the
    apartment with some mutual friends on at least one occasion. Averill said he
    sold drugs to make a living. He admitted to having an extensive criminal
    record, including convictions for drug offences and crimes of dishonesty. He
    said that on February 4, 2010, he had half a key (half a kilogram) of cocaine
    hidden under the bathroom sink and around a pound of weed in the kitchen
    freezer or crisper, which corresponded with the drugs the police seized in the
    search.

[96]

The
    trial judge referred to Averills evidence at a number of points in his charge
    to the jury. First, he provided an instruction as to the proper and prohibited
    uses of evidence of Averills prior convictions. Averill had a lengthy criminal
    record, and the trial judge pointed out that many of the convictions were for
    crimes of dishonesty and that he also was convicted of breaching a recognizance
    on multiple occasions, which showed a disregard for court orders. The trial
    judge concluded: It is your decision how much you wish to rely upon Mr.
    Averills evidence. Would you enter into a business arrangement with Mr.
    Averill? Use your common sense to determine how much weight you wish to rely
    upon Mr. Averills evidence [
sic
].

[97]

Next,
    the trial judge referred to Averills evidence in summarizing the appellants
    positions. In reviewing McManuss position, the trial judge said that Averill
    testified that the apartment was one of many of his stash houses where he
    stored his drugs. Averill gave details of where the drugs were kept in the
    apartment, the type, and the amount. He admitted his criminal record, and
    defence counsel contended his credibility was not challenged in any substantial
    way. A similar account was provided as part of the summary of Chapmans
    position. No objection is raised with respect to this part of the charge.

[98]

Later,
    the trial judge referred to Averills testimony in his summary of the evidence.
    The following excerpts are representative of this part of the charge:

The defence relies upon the evidence of Mr. Averill. He gave
    direct evidence that he was the person that put the cocaine in the small
    bathroom behind the door. He was the person that had the marijuana in the freezer.
    His testimony of all his evidence in-chief took about 20 minutes. He has a
    number of significant convictions which indicate a tendency of dishonesty. He
    said he usually stores marijuana in the freezer or crisper.

There are no documents supporting his presence at [the Waterloo
    Street apartment]. There is no surveillance that he was present at [the
    Waterloo Street apartment] when they were watching that building.



The defence rests on the credibility and reliability of Mr.
    Averill.

With respect to the Crowns reliance on circumstantial evidence
    there was not one piece of objective and verifiable evidence that he went to [the
    Waterloo Street apartment]. The Crown relies upon surveillance, the search and
    the text messages and the interpretation of the words in the text messages.

Ms. Chapmans passport was found in the jewelry box on top of
    the dresser. Now ask yourself if she is not a tenant there and she only drops
    by to visit Mr. Averill for sex as he said, why do you put your passport in a
    jewelry box? When you are looking at both the direct evidence and the
    circumstantial evidence you have to evaluate it critically.

He wanted to show you that he is a big drug trafficker and that
    is up for you to determine whether you think he was a big drug trafficker. He
    listed all these cars. There is no evidence, documentary evidence, apart from
    his word, that he owned these cars. There is no direct evidence for example of
    Ms. Chapman or Mr. McManus had drugs on their persons, but there is some evidence
    connecting them to that apartment.

You had the officer that came and investigated. Notice that he
    said Mr. Averill said that he only used the place for a stash house. Funny use
    for a stash house  clothes, debt books and other things that were found there.
    So, there is no explanation but he was not in fairness, he was not asked about
    the debt books. He was not cross-examined on the debt books.

[99]

At
    trial, counsel for the appellants objected to aspects of the jury charge
    regarding Averill on the basis that it effectively told the jury to reject his
    evidence. The trial judge refused to correct the charge.

(b)

Positions of the Parties

[100]

The appellants
    submit that the trial judges treatment of Averills evidence reflected the
    trial judges rejection of that evidence, resulting in a charge that unduly
    favoured the Crown. The trial was therefore unfair.

[101]

The Crown
    contends that, read as a whole, the charge was balanced and fair, and that the
    trial judge simply pointed out to the jury the weaknesses in Averills evidence
    and parts of his criminal record that affected his credibility.

(c)

The Relevant Principles

[102]

An important
    cornerstone of a jury charge is its objectivity: In an otherwise partisan
    atmosphere, the jury is entitled to look to the charge to guide it safely through
    its deliberations and assist it in arriving at a true verdict according to
    law:
R. v. Baltovich
, (2004) 73 O.R. (3d) 481 (C.A.), at para. 115.

[103]

While a trial
    judge is entitled to express an opinion about the evidence, there is an overall
    requirement that the charge is balanced and fair. A determination of whether
    the charge is balanced and fair requires an examination of the charge as a
    whole. A charge is unfair where the trial judge deliberately or inadvertently
    [places] her thumb on the Crowns side of the scales of justice:
R. v.
    Paredes
, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 41 or unduly
    [promotes] the Crowns case and effectively [ignores] or [underplays]
    significant elements of the case for the defence:
R. v. B.B.
, 2009
    ONCA 552, 251 O.A.C. 146, at para. 17.

(d)

The Principles Applied

[104]

I agree with the
    appellants that the trial judges treatment of Averills evidence unduly
    promoted the Crowns case and denigrated the defences case, thereby
    compromising the appearance of fairness in the trial.

[105]

The trial judge made
    it clear to the jury that he found Averills evidence unworthy of belief and he
    urged them to reject it. He did so by contrasting the type of evidence on which
    the Crown relied in support of a conviction with the absence of objective and
    verifiable evidence to support Averills account. The trial judges emphasis
    on a lack of evidence corroborating Averills testimony tended to
    inappropriately shift the burden of proof to the appellants. Such a
Vetrovec
-like
    caution is inappropriate for a defence witness:
Vetrovec v. The Queen
,
    [1982] 1 S.C.R. 811;
R. v. Tzimopoulos
(1986), 29 C.C.C. (3d) 304
    (Ont. C.A.), at pp. 339-340.

[106]

The trial judge pointed
    to the brevity of the defence evidence, which was essentially irrelevant in determining
    whether such evidence raised a reasonable doubt. He also used rhetorical
    questions. In
Baltovich
, at paras. 145-146, this court cautioned that
    rhetorical questions that admit of only one answer should be avoided lest the
    trial judge be seen as taking up the Crowns cause and casting off the mantle
    of objectivity.

[107]

I agree that the
    treatment of the defence evidence by the trial judge in his charge to the jury affected
    the fairness of the trial. I would therefore give effect to this ground of appeal.

D.

Conclusion and Disposition

[108]

While I would
    not give effect to the appellants s. 11(b) argument, I have concluded that the
    trial judge erred: in admitting the expert opinion evidence of a police witness
    who was not impartial and independent; in his
Corbett
ruling which
    preceded McManuss decision not to testify; and in his treatment of the defence
    evidence in his charge, which lacked balance and objectivity. The overall and
    combined effect of these errors is that the appellants were denied a fair trial.
    I would therefore allow the appeal, set aside their convictions, and direct a
    new trial.

K. van Rensburg J.A.

I agree David Watt
    J.A.

I agree Gloria Epstein
    J.A.

Released: March 03, 2017


