



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Nugent, 2019 ONCA 999

DATE: 20191218

DOCKET: C66275

Huscroft, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario
    (Ministry of Labour)

Appellant

and

Andrew Nugent, Richard Guillemette and Tyler
    Buckingham

Respondents

Daniel Kleiman and Indira Stewart, for the appellant

Ian R. Smith and Andrew Guaglio, for the respondent
    Andrew Nugent

Jeremy Warning, for the respondent Richard Guillemette

Richard Stephenson, for the respondent Tyler Buckingham

Heard: September 25, 2019

On appeal from the order of Justice Robin Y. Tremblay of
    the Superior Court of Justice, dated June 8, 2018, dismissing an appeal from
    the stay entered on November 23, 2017, by Justice Joseph G. R. Maille of the
    Ontario Court of Justice.

Huscroft J.A.:


OVERVIEW

[1]

On June 3, 2015, Denis Millette died while working at the Detour Lake
    Mine, an open-pit gold mine operating near Cochrane, Ontario. He was an
    experienced millwright, but had been employed at the mine only briefly when he
    was instructed to replace a leaking expansion joint on a reactor that used
    cyanide. He died of acute cyanide intoxication caused by skin absorption.

[2]

After a lengthy investigation by the Ontario Provincial Police and the
    Ontario Ministry of Labour, charges were laid under both the
Criminal Code
, R.S.C. 1985, c. C-46, and
the
Occupational
    Health and Safety Act
, R.S.O. 1990, c.
    O.1
(
OHSA
).

[3]

Detour Gold Corporation (DGC), the corporation that owned and operated
    the gold mine, was charged with criminal negligence causing death contrary to
    the
Criminal Code
, along with various offences under the
OHSA
.
    DGC pleaded guilty to one of the criminal charges and was sentenced. The
OHSA
charges against DGC were withdrawn.

[4]

Michale Okros, an Inline Leach Reactor operator, and the respondent
    Andrew Nugent, who was the Acting Process Plant Manager, were also charged with
    criminal negligence causing death contrary to the
Criminal Code
. Those
    charges were withdrawn after DGC pleaded guilty.

[5]

Mr. Nugent and co-respondents Tyler Buckingham, who was a Process Plant
    Superintendent, and Richard Guillemette, who was Health and Safety and Asset
    Protection Manager, were charged with various offences under the
OHSA
on
    May 26, 2016. Their trial was not scheduled to begin until January 29, 2018 
    about three months beyond the 18-month presumptive ceiling established in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. The respondents brought an
    application seeking to have the charges against them stayed under s. 11(b) of
    the
Canadian Charter of Rights and Freedoms
.

[6]

The application judge found that the net delay in this case was 23
    months. This figure included the 21 months from the swearing of the information
    until the anticipated last day for evidence and submissions at trial, and an additional
    two months the application judge estimated would be required for the decision
    to be written (judicial reserve time). Although the application judge found
    that this was a particularly complex case, he found that the Crown had failed
    to develop and follow an adequate plan to minimize delay resulting from the
    complexity. As a result, he concluded that s. 11(b) was breached and stayed the
OHSA
charges against all of the respondents. The application judges
    decision was upheld by the appeal judge.

[7]

The appellant argues that the application judge erred by including the
    time a decision is under reserve in calculating delay, and misinterpreted the
    requirement that the Crown develop and follow a concrete plan to minimize
    delay. I conclude that, regardless of whether time for judicial deliberation is
    properly included in calculating net delay, the application judge
    misinterpreted the particularly complex case exception established in
Jordan
,
and the appeal judge failed to recognize

and remedy this error. Properly
    interpreted, the particularly complex case exception

justifies the delay
    in this case.

[8]

I would allow the appeal and order that the charges proceed to trial.

BACKGROUND

Procedural history

[9]

This case is unusual in that it involves concurrent charges under the
Criminal
    Code

and the
OHSA
.
    The death of Mr. Millette was investigated by both the Ontario Provincial
    Police and the Ontario Ministry of Labour. Criminal charges came first, on
    April 15, 2016 and May 3, 2016, against DGC, Mr. Okros, and the respondent Mr. Nugent.
    Charges under the
OHSA
were sworn on May 26, 2016. The
OHSA

information alleged 15 counts against DGC and two counts against each of the
    respondents.

[10]

Following a number of pre-trials, DGC agreed to plead guilty to one
    count of criminal negligence causing death. It was fined $1.4 million and
    ordered to pay a victim fine surcharge of $420,000 and restitution of $805,333
    to Mr. Millettes widow. The criminal charges against Mr. Okros and the
    respondent Mr. Nugent were withdrawn. It was further agreed that the 15
OHSA
charges against DGC would be withdrawn. However, no resolution was reached
    concerning the
OHSA
charges against the respondents, and as a result a
    trial was necessary.

The application judges decision

[11]

The application judge noted that the information was sworn on May 26,
    2016, and the evidence and submissions were scheduled to conclude on February
    23, 2018. He concluded that the time the decision would be under reserve must
    be included in calculating total delay, following the decision in
R. v.
    J.M.
, 2017 ONCJ 4, 344 C.C.C. (3d) 217, and estimated that two months
    would be required for this purpose. This resulted in a total delay that he
    rounded-off at 23 months. The Crown did not allege any defence delay. As a
    result, the net delay was 23 months  some five months over the presumptive
    ceiling of 18 months for trials in the provincial court.

[12]

The application judge considered whether the Crown could establish
    exceptional circumstances. He found that the Crown had succeeded in
    establishing that this was a particularly complex case and went on to consider
    whether the Crown had developed and followed a concrete plan to minimize delay,
    in accordance with the requirements of
Jordan
. He found that each step
    taken by the Crown, including the Crowns participation in extensive joint
    judicial pre-trials, was appropriate. However, he concluded that the steps
    taken by the Crown to advance the prosecution were, as a whole, inadequate.

[13]

Specifically, the application judge found that the Crown did not take
    reasonable steps to bring the case to trial under the presumptive ceiling in
    the event that it did not resolve. In his view, it was unreasonable for the
    Crown not to seek a trial date until June 9, 2017  about 5.5 months before the
    presumptive ceiling  because this left only a 2.5-month window in which to complete
    this lengthy trial before the ceiling was reached. This narrow window made
    completion of the trial under the ceiling highly unlikely, if not next to
    impossible.

[14]

As it happened, on June 9, 2017 when the Crown sought a trial date, the
    earliest date available was January 8, 2018. January 29, 2018 was ultimately selected
    in order to accommodate the requirements of counsel. The application judge
    found that the Crown ought to have anticipated such a time frame in setting a
    trial date in this matter.

[15]

The application judge also criticized the Crowns trial management of
    this case, focusing on the Crowns failure to reply to the May 25, 2017 email
    message from counsel for the respondent Mr. Buckingham in a timely way. The
    Crown did not reply until June 8, 2017, just prior to commencement of a
    scheduled judicial pretrial, and its reply was incomplete, as it included only
    a very preliminary witness list and did not respond to the various trial
    management issues raised by counsel in the email. The application judge found
    that the Crown made no effort prior to the June 9, 2017 pretrial to narrow the
    issues or shorten the trial, to attempt to negotiate an agreed statement of
    facts, or to seek agreement regarding documents.

The appeal judges decision

[16]

The appeal judge first considered whether the application judge erred in
    his evaluation of the Crowns efforts to minimize delay caused by the
    complexity of the case. He noted that the Supreme Court did not articulate a
    standard by which to evaluate whether the Crown had developed and followed a
    concrete plan to minimize the delay occasioned by a complex prosecution.
    However, he accepted that the Crown must act reasonably and that the court
    should not retroactively micromanage the Crowns case.

[17]

The appeal judge found that the application judge did not err in his
    interpretation of the principles applicable to determining whether the Crown had
    developed and followed a concrete plan to minimize delay, and properly took a
    global perspective in evaluating the steps taken by the Crown on the
    reasonableness standard. The two critical findings of the application judge
    were: (i) that the Crown did not secure a trial date in a timely fashion; and (ii)
    that the Crowns case management was problematic because it did not take steps
    to streamline the evidence to be introduced at trial. The appeal judge
    concluded that these findings were amply supported by the evidentiary record
    and were entitled to great deference.

[18]

The appeal judge next considered whether these factual findings allowed
    the application judge to conclude that the Crown had failed to take reasonable
    steps to bring the case to trial under the presumptive ceiling. The appeal
    judge found that the application judges view on securing a trial date in this
    case was entitled to substantial deference and that it was open to him to
    conclude that the Crowns failure to secure a trial date in a timely manner was
    unreasonable. The respondents acquiescence did not undermine this conclusion,
    because the obligation to develop and follow a concrete plan to minimize delay
    rested solely on the Crown. The appeal judge added that the Crowns
    problematic case management was properly considered by the application judge,
    who made no palpable and overriding errors in the course of his assessment.

[19]

As a result, the appeal judge concluded that there was no basis to
    interfere with the application judges conclusion that the Crown had failed to
    establish exceptional circumstances outside of its control, and there was no
    need to determine whether the net delay included a further two-month period
    anticipated for judicial deliberation.

DISCUSSION

[20]

On the same day that this case was argued, the Supreme Court of Canada
    heard argument in
R. v. K.G.K.
, 2019 MBCA 9, [2019] 5 W.W.R. 492, a
    case that squarely raises the first issue raised by the appellant  whether the
    time a decision is under reserve is included in calculating net delay. The Supreme
    Court reserved its decision, and it continues to be under reserve at this time.

[21]

I need not address this issue in order to resolve this appeal. As I will
    explain, even if the two-month period in which the decision was expected to be
    under reserve properly counted in calculating net delay, the resulting delay of
    five months is justified in the circumstances of this particularly complex case,
    and as a result s. 11(b) is not breached. Accordingly, I will say no more about
    this issue and will proceed to consider the Crowns duty to develop and follow
    a concrete plan to minimize delay in a particularly complex case.

The standard of review

[22]

This is a second appeal of a provincial offences matter. As such, only
    questions of law are subject to review:
Provincial Offences Act
,
    R.S.O. 1990, c. P.33, s. 131(1). The decision under appeal is that of the
    appeal judge, not the application judge, but as I will explain it is necessary
    to consider whether the application judge misinterpreted the law before
    considering whether the appeal judge erred in upholding the application judges
    decision.

[23]

The Crown submits that whether there has been unreasonable delay is a
    question of law to which the correctness standard applies, citing this courts
    decision in
R. v. Jurkus
, 2018
    ONCA 489, 363 C.C.C. (3d) 246, leave to appeal refused, [2018] S.C.C.A. No.
    325,

at para. 25:

I do not agree that the designation of a period of time as
    defense delay is a finding of fact that is owed deference. Although underlying
    findings of fact are reviewed on a standard of palpable and overriding error,
    the characterization of those periods of delay and the ultimate decision as to
    whether there has been unreasonable delay are subject to review on a standard
    of correctness[.] [Citations omitted.]

[24]

The respondents submission on the standard of review relates to the question
    whether the Crown adequately prepared and implemented a litigation plan to minimize
    delay in a particularly complex case. This, the respondents say, is a factual
    finding that is not reviewable by this court on a second appeal. The respondents
    cite this courts recent decision in

R. v. Majeed
, 2019 ONCA 422,

as well as the
    decision of the Alberta Court of Appeal in
R. v. Regan
, 2018 ABCA 55, 359 C.C.C. (3d) 53, leave to appeal
    refused, [2018] S.C.C.A. No. 102, in support of this point
. In
Majeed
this court stated: In our view, whether the Crown acted quickly and
    effectively enough was the kind of factual determination that lies at the heart
    of the trial judges fact-finding role (para. 11).

[25]

In this case, there is no doubt that the presumptive ceiling has been
    exceeded. The respondents agree that this was a particularly complex case, so
    the question is whether the particularly complex case exception operates to
    justify the delay.

[26]

In order to take advantage of the particularly complex case exception,
Jordan
requires the Crown to develop and follow a concrete plan to minimize the delay
    occasioned by the complexity. As the Supreme Court explained: Where it has
    failed to do so, the Crown will not be able to show exceptional circumstances,
    because it will not be able to show that the circumstances were outside its
    control (para. 79).

[27]

Whether the Crown has developed and followed a concrete plan to minimize
    delay is not a question of characterization to which the correctness standard
    applies. The particularly complex case exception does not depend on the characterization
    or calculation of delay. If the particularly complex case exception is found to
    apply in a particular case, and the further finding is made that the Crown
    developed and followed a concrete plan to minimize delay, no ultimate question
    arises as to whether s. 11(b) has been breached; the delay is justified and s.
    11(b) has not been breached.

[28]

As this court stated in
Majeed
, the application of the
    particularly complex case exception is factual in nature and the application
    judges decision is entitled to deference. But deference to a decision applying
    the particularly complex case exception is premised on the requirement that the
    exception be interpreted correctly as a matter of law. As I will explain, the application
    judge erred in interpreting the particularly complex case exception, and in
    doing so failed to give effect to the purpose of this exception. The appeal judge
    erred in failing to recognize and correct that error.

The application judge misinterpreted the particularly complex case
    exception

[29]

The Supreme Court made clear in
Jordan
that although delay
    beyond the ceilings it established is presumptively unreasonable, the Crown may
    rebut the presumption of unreasonableness by establishing exceptional circumstances.
    In general, exceptional circumstances fall into two categories: discrete events
    and particularly complex cases. These categories operate in fundamentally
    different ways, and must be kept analytically distinct.

[30]

The discrete event exception operates within the context of the
    presumptive ceiling and the calculation of delay. If the Crown establishes a
    discrete event (such as an illness or unexpected event at trial), the
    delay that is reasonably attributable to that event is subtracted from the
    total delay that has occurred. The net delay figure is then assessed against
    the presumptive ceiling. In other words, the presumptive ceiling remains the
    reference point for the analysis.

[31]

In contrast, the particularly complex case exception operates outside
    the context of the presumptive ceiling, and without regard to it as a reference
    point. The focus of the particularly complex case exception is on whether the
    delay that exceeds the presumptive ceiling is justified in light of the overall
    complexity of a case. The trial judge must consider whether the Crown developed
    and followed a concrete plan
to minimize
    the delay occasioned by the complexity
 not whether the Crown
    developed and followed a concrete plan
to attempt
    to bring the trial to a conclusion within the presumptive ceiling
.
    As the court stated in
Jordan
: 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 (para. 80).

[32]

In summary, the particularly complex case exception operates to justify delay
    beyond the presumptive ceiling. The exception must be interpreted in a manner
    that gives effect to this purpose.

[33]

As the court explained in
Jordan
, particularly complex cases
    are cases that require an inordinate amount of trial or preparation time such
    that the delay is justified (para. 77). This may be because of the nature of
    the evidence or the nature of the issues in a particular case, or both.

[34]

The application judges finding this was a particularly complex case is
    not contested. Nor could it be; as the application judge found, this case bears
    all of the hallmarks of complexity the Supreme Court identified in
Jordan
,
    because of both the nature of the evidence and the nature of the issues:

-

A detailed investigation, with a summary exceeding 100 pages;

-

Voluminous disclosure (6 binders and over 2500 pages);

-

A large number of witnesses (estimated at 32);

-

Requirements for expert evidence (engineering, toxicology, and pathology);

-

A large number of charges (21 charges against 4 accused, reduced to 6 charges
    against 3 accused);

-

The involvement of several different defence counsel (four reduced to
    three);

-

The requirement for a lengthy trial (estimated at four weeks) in the
    Ontario Court of Justice in a single-judge northeastern Ontario jurisdiction covering
    a vast geographic area with multiple court locations; and

-

Several judicial pre-trial conferences (five, with a sixth scheduled
    closer to the trial date).

[35]

What is at issue is whether the Crown followed a concrete plan to
    minimize delay. The application judge and the appeal judge recognized that the
    Crowns plan must be reasonable, assessed on a global basis. The reasonableness
    of a plan to address a particularly complex case is not to be assessed by
    reference to how close it brought  or could have brought  a case to the
    presumptive ceiling. It is assessed having regard to nature of the evidence and
    the issues in the case.

[36]

The application judge identified two key concerns. He concluded that it
    was unreasonable for the Crown not to seek a trial date in a timely way, and
    that the Crowns case management was problematic because it did not take steps
    to streamline the evidence to be introduced at trial. The appeal judge
    described these as two critical factual findings that were entitled to great
    deference. I will address each of these points separately.

(1)

Delay in setting trial dates

[37]

The appeal judge erred in deferring to the application judges decision
    that the Crown failed to secure a trial date in a timely fashion. This
    conclusion was based on a clear legal error: the application judge used the
    presumptive ceiling as the benchmark against which to judge the timeliness of
    the Crowns actions.

[38]

The error is apparent in this passage of the application judges reasons:

[I]t was unreasonable for the Crown not to seek a trial date
    until about 5½ months before the presumptive ceiling was reached, leaving about
    a 2½ month window, including the summer months, in which to start this lengthy
    trial.
By doing so, the Crown made completion of this trial under the presumptive
    ceiling highly unlikely, if not next to impossible
.
[Emphasis added.]

[39]

Given that the very purpose of the particularly complex case exception
    is to justify delay for cases that require time beyond the presumptive ceiling,
    the availability of the exception cannot be conditioned on attempts to meet
    that ceiling. Put another way, a plan to minimize the delay caused by a
    particularly complex case is neither undermined nor rendered inadequate because
    it does not aim to conclude a case within the presumptive ceiling.

(2)

The Crowns trial management of the case

[40]

The appeal judge also erred in deferring to the application judges
    decision that the Crowns case management was problematic. This decision was
    also based on a legal error.

[41]

The application judge found that many of the most significant steps
    taken by the Crown during the course of the proceedings were reasonable,
    appropriate, and in the interests of justice. These included:

-

The decision to proceed against multiple accused rather than sever the
    proceedings;

-

The decision to initially link the
OHSA
prosecution to the
    parallel criminal prosecution through the judicial pre-trial process;

-

The decision to participate in the extensive combined judicial pre-trial
    process, which resulted in all criminal charges being resolved without a trial
    and the withdrawal of all 15
OHSA
charges against DGC;

-

The prompt delivery of voluminous disclosure;

-

The replacement of the prosecuting Crown when he became incapacitated;

-

The early joining of the two sets of charges, so as to streamline the
    process; and

-

The acceptance of any and all dates offered by the court.

[42]

Despite these findings, the application judge went on to conclude that,
    on the whole, the steps taken were inadequate.

[43]

The appeal judge erred in concluding that the application judge
    evaluated the steps taken by the Crown on the reasonableness standard. In fact,
    the application judge did not apply the deferential reasonableness standard
    that was required. Instead, he parsed various steps taken by the Crown and in
    effect micromanaged the Crowns case management. He applied an overly stringent
    standard, and in doing so he erred in law.

[44]

Both the application judge and the appeal judge failed to heed the Supreme
    Courts instruction in
Jordan
that the Crown is not required to show
    that the steps it took were ultimately successful  rather, just that it took
    reasonable steps in an attempt to avoid the delay (para. 70). This point was
    reiterated by this court in
R. v. Saikaley
, 2017 ONCA 374, 348 C.C.C. (3d) 290, leave to appeal refused, [2017]
    S.C.C.A. No. 284, at para. 47
:

[W]e do not read
Jordan
as requiring the Crown to take
    any and all steps proposed by the defense to expedite matters.  So long as the
    Crown acts reasonably and consistently with its duties, it would be
    unconscionable to deny it the benefit of the complex case exception[.]

[45]

In short, the Crown is to be held to a standard of reasonableness, not
    perfection.

Applying the correct standards

[46]

The test that must be applied is this: did the Crowns plan for dealing
    with this particularly complex case,
considered as a whole
, reasonably
    attempt to minimize delay occasioned by such complexity?

[47]

The Crowns so-called failure to secure a trial date in a timely fashion
    does not disentitle the Crown from relying on the particularly complex case
    exception, even assuming that it did not advance the Crowns plan for minimizing
    delay. I see no failure on the part of the Crown in any event. The Crown should
    not be encouraged or required to set trial dates that may well prove to be unnecessary
    or unrealistic (depending on the result of the judicial pre-trial process),
    lest it contribute to additional systemic delay  undermining rather than
    reinforcing the purpose of
Jordan
. It should also not be encouraged or
    required to set trial dates where the issues in contest are not yet settled.
    One of the core purposes of the judicial pre-trial process is to determine what
    evidence is necessary, and what evidence may be rendered unnecessary by the
    agreement of counsel. This had yet to occur in this case.

[48]

Similarly, although there may have been additional steps that the Crown
    could have taken  in particular, the steps suggested by the defence in its May
    25, 2017 email message, to which the Crown did not reply in a timely manner 
    there was no obligation on the Crown to take the particular steps suggested by
    the defence, and its failure to take those steps does not undermine the reasonableness
    of the Crowns handling of this case, judged as a whole. This is a paradigm
    example of a particularly complex case, for all of the reasons outlined above 
    the very sort of case for which the exception was created. And, considered on
    the whole, the Crown acted reasonably in attempting to minimize delay occasioned
    by its complexity.

[49]

At the end of the day, the application judge erred in law by using the
    presumptive ceiling as a reference point and applying an overly stringent
    standard in assessing the Crowns plan to minimize delay. The appeal judge
    erred in failing to recognize and remedy this legal error.

[50]

The question at the heart of this case is this: all things considered, was
    the delay in completing this particularly complex case reasonable? In my view, applying
    the proper legal standard, it clearly was.

CONCLUSION

[51]

I would allow the appeal and order the matter to trial.

Released: December 18, 2019 (G.H.)

Grant Huscroft J.A.

I agree. David M. Paciocco
    J.A.

I agree. I.V.B. Nordheimer
    J.A.


