



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hanan, 2022 ONCA 229

DATE: 20220321

DOCKET: C68236

Tulloch, van Rensburg and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dia Eddin Hanan

Appellant

Saman Wickramasinghe and Parmbir Gill,
    for the appellant

Michael Fawcett and Andrew Hotke, for
    the respondent

Heard: September 7, 2021 by
    video conference

On appeal from the conviction entered by
    Justice Kirk W. Munroe of the Superior Court of Justice, sitting with a jury, on
    November 28, 2019, and the sentence imposed on March 2, 2020, with reasons
    reported at 2020 ONSC 1209.

van Rensburg J.A.:

I.

OVERVIEW

[1]

The appellant was charged with first degree
    murder, attempted murder and firearms-related offences in connection with a shooting
    of two individuals on December 23, 2015. One victim died and the other was
    severely injured. The preliminary inquiry judge discharged the appellant on
    first degree murder and committed him to trial on second degree murder,
    attempted murder and the firearm charges.

[2]

On October 28, 2019, the appellants trial by
    judge and jury commenced. It concluded four weeks later. The appellant was
    acquitted of second degree murder and convicted of manslaughter in connection
    with the victim who died. He was acquitted of attempted murder but convicted of
    discharging a firearm with intent to wound in connection with the second victim
    and of possession of a restricted firearm without a license. He was sentenced
    to 15 years in custody, less credit for pre-sentence custody and restrictive
    bail conditions.

[3]

The appellant appeals his conviction and
    sentence.

[4]

The appellant raises two grounds of appeal against
    his conviction. First, he asserts that the trial judge erred in dismissing his
    application for a stay of proceedings under s. 24(1) of the
Charter
,
    for violation of his s. 11(b) rights (oral reasons reported at 2019 ONSC 320).
    He alleges two errors. First, he contends that the trial judge, in concluding
    that there was a net delay of 35 months and 7 days under
R. v. Jordan
,
    2016 SCC 27, [2016] 1 S.C.R. 631, erred in his assessment of defence delay, and
    that the net delay was in fact 40 months and 7 days. The appellant asserts that
    it was an error to attribute several months of delay to the defence arising
    from repeated adjournments before a judicial pre-trial was set, when the Crown
    provided insufficient and delayed disclosure. Second, he argues that the trial
    judge erred in his application of the transitional exceptional circumstance,
    where only approximately six months of the case occurred pre‑
Jordan
and where the Crown made a significant mistake well after
Jordan
had
    been released, resulting in a delay of the trial by almost a year. For its
    part, the Crown argues that the trial judge erred by not attributing more of
    the delay in respect of the rescheduled trial to the defence, and that the net
    delay was in fact 32 months.

[5]

In an argument made in this appeal as well as
    two other appeals heard the same week,
R. v. Charity
and
R. v.
    Campbell
,
[1]
the Crown submits that, if this court concludes that there was a violation of
    the appellants s. 11(b) rights, a remedy other than a stay of proceedings
    should be considered.

[6]

The appellants second ground of appeal against
    his conviction is based on an alleged error in the trial judges jury charge.
    He submits that the jury was misdirected on the burden of proof when told that
    they should choose between the accounts of the appellant and the surviving
    victim in the trial judges instructions on self-defence.

[7]

The appellant also seeks leave to appeal his
    sentence, arguing that the trial judges reasons make it clear that he was
    sentenced as though he was convicted of murder, and that the global sentence
    for manslaughter and the offences of which he was convicted was demonstrably
    unfit.

[8]

For the reasons that follow, I would dismiss the
    appeal.

[9]

With respect to the s. 11(b) issues, I would not
    interfere with the trial judges refusal to stay the proceedings due to delay.
    The trial judge correctly assessed net delay at 35 months and 7 days. He did
    not err in attributing to the defence the delay of nine months, 4.5 months of
    which is conceded by the appellant, for the time that defence counsel refused
    to set a judicial pre-trial. Nor would I accept the Crowns argument that the
    entire period between the available June 2019 trial dates, for which the
    defence was not available, and the eventual commencement of trial in October
    2019 counts as defence delay. In his treatment of defence delay, the trial
    judge properly applied the principles articulated in
Jordan
and other
    cases, having regard to the particular circumstances before him. I would also
    not interfere with the trial judges conclusion that the delay, which exceeded
    the
Jordan
ceiling, was nevertheless justified by the transitional
    exceptional circumstance. His assessment of the relevant factors in the context
    of the case does not reveal any legal error and is entitled to deference.

[10]

Because of my conclusion on the first ground of
    appeal, it is unnecessary to consider the Crowns argument that a remedy other
    than a stay of proceedings should be considered. If I had concluded that there
    was a s. 11(b) breach, I would have ordered a stay of proceedings, for the
    reasons expressed in
R. v. Charity
, 2022 ONCA 226, which is released
    together with these reasons.

[11]

I would also reject the appellants argument
    that there was a reversible error in three passages of the jury charge where
    the trial judge referred to the competing and conflicting versions of
    events of the appellant and the surviving victim. When considered in the
    context of the entire jury charge and the issues at trial, the impugned
    passages do not reveal error. The charge provided clear direction to the jury
    on the Crowns burden of proof and their assessment of the evidence, including
    the application of
R. v. W.(D.)
,

[1991] 1 S.C.R. 742, to the
    elements of the offences and the defence of self-defence.

[12]

Finally, I am not persuaded that the sentence
    was demonstrably unfit. Recognizing that the shootings were intentional, in the
    sense that they were not accidental, the trial judge imposed a reasonable
    sentence, having regard to all of the relevant circumstances, including the
    seriousness of the offences.

[13]

I will deal with each ground of appeal in turn.

II.

THE STAY APPLICATION: SECTION 11(
b
) OF THE
CHARTER

[14]

I will begin by setting out the relevant
    procedural chronology, followed by a summary of the trial judges reasons for
    dismissing the s. 11(b) application. I will then discuss each of the issues:
    whether the trial judge erred in his assessment of defence delay during two
    periods, and whether he erred in his application and assessment of the
    transitional exceptional circumstance.

(1)

Procedural Chronology

[15]

The appellant was charged with first degree
    murder and attempted murder on December 24, 2015. He was initially detained in
    custody. The Crown alleged that the two victims attended the appellants home,
    and while they were in the driveway, he shot them both, killing one and leaving
    the other paralyzed. The surviving victim, Gregory Henriquez, was a Crown
    witness.

[16]

The matter proceeded slowly through the Ontario
    Court of Justice (the OCJ). The Crown provided substantial initial disclosure
    on January 7, 2016. On January 21, defence counsel attended court and asked for
    a one-week adjournment for the purpose of setting a judicial pre-trial date.
    However, a judicial pre-trial was not set for several months. On January 28,
    the defence asked for a further adjournment, citing outstanding disclosure.
    This became a pattern, and over the next few months, the matter stalled as the
    Crown provided further disclosure and, instead of agreeing to scheduling a
    judicial pre-trial, the defence requested adjournments to review disclosure or
    to await further disclosure.

[17]

On March 10, 2016, the Crown filed a replacement
    information, adding six firearms charges. Again, the defence asked for an
    adjournment because they were awaiting additional disclosure.

[18]

On April 7, 2016, the defence requested a
    one-week adjournment for the purpose of setting a judicial pre-trial, and
    again, no pre-trial was scheduled. On April 14, the defence asked for a further
    adjournment to review disclosure. On this occasion, the Crown pushed to set a
    judicial pre-trial, given that the matter had been stagnant for some time. The
    defence opposed the request, suggesting that a judicial pre-trial would not be
    meaningful without full disclosure. This pattern continued for the next two
    months as the Crown continued to make disclosure.

[19]

In June 2016, the appellant advised the court
    that he intended to change counsel. At the next few court appearances, the
    defence requested adjournments to confirm new counsels retainer and for the new
    counsel to review disclosure.

[20]

On July 8, 2016, the Supreme Court released its
    decision in
Jordan
. After the release of
Jordan
, Crown
    counsel became increasingly concerned that the matter had been dragging on for
    too long without a judicial pre-trial. On July 21, the defence again requested
    an adjournment because of the change in counsel and to receive further
    disclosure, and Crown counsel expressed the need to move the case forward.

[21]

The new defence counsel got on the record in
    August 2016 and sought adjournments to review disclosure. In the multiple
    appearances that followed, the Crown stressed that a judicial pre-trial needed
    to be set as soon as possible. On October 19, the court set a judicial
    pre-trial, which took place on November 9, 2016. The parties planned to have a
    continuing judicial pre-trial. On December 15, the defence asked to delay
    setting a continuation of the judicial pre-trial pending the result of the
    appellants application for judicial interim release.

[22]

On December 20, 2016, the appellant was released
    from custody, and a continuing judicial pre-trial was set for January 16, 2017.
    The parties intended to set preliminary hearing dates in March 2017, but on
    March 1, 2017, the defence asked to delay setting such dates to review recently
    provided disclosure and to obtain further disclosure. The Crown submitted that
    dates should be set sooner rather than later, and suggested that the parties
    could adjust the dates as required. The matter was adjourned to March 29, 2017
    to set preliminary hearing dates.

[23]

On March 29, 2017, the parties set preliminary
    hearing dates for 15 days beginning on October 31, 2017. In the end, the
    preliminary inquiry lasted only eight days, concluding on December 4, 2017. On
    December 12, 2017, the appellant was committed for trial on second degree
    murder, attempted murder, and the firearms charges.

[24]

On January 5, 2018, the first appearance in the
    Superior Court, the presiding justice in assignment court, Pomerance J., asked
    defence counsel to identify how much of the delay to date was defence delay.
    The Crowns position was that there were eight months of defence delay at the
    beginning of the case. Defence counsel accepted that the defence delay was
    somewhere in that range. Based on this assessment, the
Jordan
ceiling of
    30 months would be reached on or around February 24, 2019. The court was eager
    to set trial dates as soon as possible.

[25]

In February 2018, following a judicial
    pre-trial, a six-week jury trial was scheduled to commence on November 5, 2018.
    Pre-trial motions were set for September 2018. The dates were confirmed in
    August 2018, at which time Crown counsel updated defence counsel on the
    polices efforts to analyze the appellants cell phone, and advised that technical
    issues prevented an analysis (the cellphone was password-protected and the
    existing technology prevented access). Crown counsel had no information about
    when a report might be obtained and warned defence counsel that it might end
    up affecting our trial timeline if it arrives unexpectedly.

[26]

Pre-trial motions commenced as scheduled on
    September 17, 2018. The Crown confirmed that the surviving victim, who lived in
    the United States and had testified by video at the preliminary inquiry, would
    be attending the trial.

[27]

On the eve of trial, the Crown encountered two
    significant challenges. First, the surviving victim refused to testify and
    could not be compelled to do so because he was not in Canada. As a result, the
    Crown intended to apply to introduce his preliminary hearing testimony and
    police statement as evidence at the trial, which would entail motions that
    would inevitably delay the start of the trial. Second, the police had succeeded
    in analyzing the appellants cell phone and had provided a report to the Crown
    at the last minute. The Crown intended to rely on this evidence, but the police
    had not provided the Crown with the information to obtain (ITO) and search
    warrant authorizing the search of the phone.

[28]

On November 2, three days before the jury trial
    was to begin, the Crown informed the court of these problems. The defence
    raised the possibility of re‑electing to a trial by judge alone under s.
    561 of the
Criminal Code
,

to avoid an adjournment. The Crown asked for time to consider the possibility
    of re-election. The trial judge warned the Crown that, while the matter was
    fine if we proceed right now, if there was further delay, they might start
    having
Jordan
problems. The trial judge told the Crown to obtain and
    disclose the ITO and search warrant over the weekend, given that the defence
    was concerned about potential
Charter
problems with the cell phone
    evidence.

[29]

On November 5, 2018, the date on which the trial
    was scheduled to begin, the Crown advised that it would not consent to a
    re-election. The defence requested an adjournment, and Crown counsel conceded
    that the defence request was appropriate. The trial judge asked about the s.
    11(b) consequences of granting an adjournment. Defence counsel confirmed that,
    if the trial could not be rescheduled in the next six months, he would likely
    bring a s. 11(b) application. The trial judge deferred consideration of
    the adjournment request to the following day. The ITO for the cell phone search
    was provided to the Crown and disclosed to the defence after court on November
    5.

[30]

On November 6, after confirming the Crowns
    position regarding re-election, the trial judge adjourned the trial to October
    28, 2019, almost a year later. The court had offered to reschedule the six-week
    jury trial beginning on June 3, 2019, after making exceptional efforts to
    reorganize the trial judges schedule. However, defence counsel was unavailable
    because he was conducting another trial for an in-custody client at that time.
    Later that day, after the trial was adjourned, the Crown advised that, having
    reviewed the ITO, it no longer intended to rely on the cell phone evidence.

[31]

The trial judge did not allow the 2018 trial
    dates to go to waste. He used the time to conduct further pre-trial motions,
    including the s. 11(b) application. On November 16, 2018, the parties held a
    judicial pre-trial to discuss the s. 11(b) issues. At the Crowns request, the
    court disclosed the trial judges schedule to the Crown, so that the Crown
    could assess the other matters assigned to the trial judge and determine
    whether any Crown matters could be resolved or adjourned. There were no other
    six-week periods when the judge was available. The Crown also proposed that the
    trial could be completed in four weeks, a suggestion that was opposed by
    defence counsel and rejected by the trial judge. In January 2019, the trial
    judge dismissed the appellants s. 11(b) application.

[32]

The appellants trial commenced as scheduled on
    October 28, 2019 and concluded on November 28, 2019.

(2)

The Trial Judges Section 11(b) Decision

[33]

The trial judge dismissed the s. 11(b)
    application, holding that, although the net delay exceeded the
Jordan
ceiling
    of 30 months, it was justified because this was a transitional case where the
    transitional exceptional circumstance applied. The total delay was about 47.5
    months. From that total, the trial judge deducted defence delay, leaving a net
    delay of 35 months and 7 days.

[34]

The trial judge deducted as defence delay
    approximately 12.5 months as follows:

·

January 21 to October 19, 2016 (9 months
): During this period, the defence refused to set a judicial
    pre-trial because disclosure was incomplete and ongoing. The appellant also
    changed counsel. The appellant acknowledged that the delay caused by the change
    in counsel was properly deducted, but argued that the remaining delay was not.
    The trial judge held that the defence position that disclosure must be complete
    before a judicial pre-trial could be set was misguided and wrong. In cases of
    even modest complexity, disclosure will be an ongoing process. Defence counsel
    had accepted that there were eight months of defence delay during this period
    at a previous court appearance.

·

December 15 to December 20, 2016 (5 days)
: The appellant agreed to a finding of defence delay because the
    defence had asked to delay setting a judicial pre-trial continuation date.

·

March 1 to March 29, 2017 (28 days)
: The defence asked to delay setting preliminary hearing dates to
    obtain and review disclosure. This delay was unnecessary, as the parties could
    have set dates and adjusted them later if required.

·

Six weeks beginning June 3, 2019 (6 weeks)
: The Crown and the court were available to conduct the rescheduled
    trial for six weeks beginning June 3, but the defence was unavailable. The
    trial judge declined to attribute the entire period of delay from June 3 to the
    October 28, 2019 trial dates to the defence, holding that because the court was
    unable to accommodate the trial sooner, it did not count as defence delay.

[35]

The trial judge declined to find any other
    defence delay based on the adjournment of the first trial dates in November
    2018. The adjournment was caused by the late disclosure of the cell phone
    analysis and the surviving victims refusal to testify. The defence application
    for an adjournment was legitimate, given the Crowns concession that proceeding
    to trial would be unfair.

[36]

The trial judge also held that the late
    disclosure of the cell phone analysis and the surviving victims refusal to testify
    did not qualify as discrete exceptional circumstances. The late disclosure did
    not qualify because it was not reasonably unforeseen or reasonably unavoidable.
    The Crown had warned the defence that this might happen, and should have been
    able to tell the court sooner that it did not intend to rely on the evidence.

[37]

The surviving victims refusal to testify also did
    not qualify as a discrete exceptional circumstance. Although the trial judge
    accepted that this was unavoidable, he concluded that the Crown failed to take
    reasonable steps to address the problem before the delay exceeded the
Jordan
ceiling. The Crowns proposal that the trial be shortened and efforts to
    find an earlier trial date were not sufficient. When the defence proposed a
    re-election, the Crown knew that the approximate
Jordan
ceiling was in
    February 2019, that the earliest available trial date was October 2019, and
    that the defence was likely to bring a s. 11(b) application. The only
    reasonable step in the circumstances was for the Crown to consent to
    re-election.

[38]

The trial judge rejected the Crowns position
    that the delay was justified by the complexity of the case. It was a classic
    self defence murder case, with typical disclosure and standard issues.

[39]

Finally, the trial judge applied the
    transitional exceptional circumstance to conclude that the delay was justified.
    He rejected the defence argument that the transitional exceptional circumstance
    did not apply because most of the proceedings (all but the first six months or
    so) occurred after the release of
Jordan
. He held that the time the
    parties have had to adapt following
Jordan
is a factor to be
    considered. The trial judge considered the following additional factors:

·

Complexity of the case:
The case was of moderate complexity.

·

Period of the delay in excess of the
    guidelines under
R. v. Morin
, [1992] 1 S.C.R. 771:
The combined institutional and Crown delay was five months in the
    OCJ, and ten months in the Superior Court. This was below the guideline for the
    OCJ, above the guideline for the Superior Court by two months, and under the
    overall guidelines.

·

Crowns response to institutional delay:
The Crown repeatedly pushed the case forward in the face of defence
    delay, and only contributed to the delay by refusing to consent to the defence re-election.

·

Defence efforts to move the case along:
The trial judge gave the defence almost no credit for any effort
    to move this case forward. In fact, the defence sought delay. The only effort
    the defence made to avoid delay was the proposal to re-elect.

·

Prejudice to the accused:
The trial judge inferred prejudice and noted that the appellant was
    in custody for a year before he was released on bail.

[40]

The trial judge also considered the limited time
    the case spent under the
Morin
framework and the seriousness of the
    offences. He stated that the final assessment was difficult. The Crown
    conducted itself impeccably until the first trial date, while the defence
    caused delay. The trial judge held that the Crowns single misstep in refusing
    to consent to re-election was not determinative. The court in
Jordan
recognized that change takes time. While Crown counsel was aware of
Jordan
within
    weeks of its release, learning the full lessons of
Jordan
, including the meaning of concepts such as 
defence
    delay, discrete exceptional circumstances, particularly complex cases, and
    transitional exceptional circumstance
,
required time. An example of this was the repeated adjournment requests by the
    defence, even after
Jordan
was released. The trial judge accepted
    that, assessing the case contextually and qualitatively, the Crown had
    established that the time it would take to try the case was justified.

(3)

Discussion

[41]

The standard of review of a decision on a s.
    11(b) application is well‑established. Deference is owed to a trial
    judges underlying findings of fact. The correctness standard applies to the
    trial judges characterization of periods of delay, and to the determination of
    whether the delay was unreasonable:
R. v. Jurkus
, 2018 ONCA 489, 363
    C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.
    Trial judges are generally in the best position to determine whether
    exceptional circumstances exist (including in the assessment of the
    transitional exceptional circumstance):
Jordan
, at para. 98. While
    typically deference is owed to such a determination, a clear legal error would
    justify interference:
R. v. Picard
, 2017 ONCA 692, 137 O.R. (3d) 401, at
    para. 137, leave to appeal refused, [2018] S.C.C.A. No. 135.

a)

Defence Delay

[42]

There are two relevant periods at issue: (a) the
    4.5-month period between January 21 and June 9, 2016, when the defence refused
    to set a judicial pre-trial based on incomplete and ongoing disclosure; and (b)
    the period commencing June 3, 2019, when a six-week trial date was offered but
    the defence was not available, until the trial proceeded on October 28, 2019.


i.

January 21, 2016 to June 9, 2016

[43]

The appellant contends that the trial judge
    erred in characterizing the 4.5-month period from January 21 to June 9, 2016 as
    defence delay when defence counsel reasonably refused to set a judicial
    pre-trial date because of inadequate Crown disclosure. The appellant submits
    that, tracking the definition of defence delay in
Jordan
and
R. v. Cody
,
    2017 SCC 31, [2017] 1 S.C.R. 659, counsels request for time to review
    extensive outstanding disclosure before setting a judicial pre-trial was not
    illegitimate defence action that failed to respond to the charges. Rather, it
    was reasonable for the defence to refuse to set a judicial pre-trial, given
    that disclosure was incomplete and ongoing. Not counting that period as defence
    delay would result in a net delay of 40 months and 7 days.

[44]

I would not interfere with the trial judges
    attribution of delay to the defence resulting from the repeated adjournment
    requests that were based on the need for more disclosure. Authorities both
    before and after
Jordan
make it clear that the Crown is not obliged to
    make complete disclosure before a judicial pre-trial is set: see, e.g.,
R.
    v. N.N.M.
(2006), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 37;
R. v.
    Kovacs-Tatar
(2004), 73 O.R. (3d) 161 (C.A.), at para. 47; and
R. v.
    Carbone
, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 51-53.

[45]

In
R. v. D.A.
, 2018 ONCA 96, 402 C.R.R.
    (2d) 303, a case relied on by the appellant, the parties scheduled pretrial and
    trial dates despite outstanding disclosure. This court concluded that, after
    the Crown continued to provide significant new material in the moments leading
    up to each appearance, it was legitimate for the defence to require time to
    review the disclosure before proceeding as scheduled: at paras. 7, 12-22. In
    this case, by contrast, where defence counsel continually refused to set dates
    for a judicial pre-trial citing inadequate Crown disclosure, the trial judge found
    that the Crown had been diligent in providing disclosure and that the defence
    had sufficient disclosure to set a judicial pre-trial. In fact, defence counsel
    had told the court on two occasions, before again requesting adjournments, that
    she intended to set a judicial pre-trial.

[46]

The trial judge found that the defences
    repeated delay of the pre-trial was misguided, drastically inefficient, and
    wrong, and he noted that, when the proceedings moved to the Superior Court,
    defence counsel acknowledged that this period was defence delay. He concluded
    that this was not a case of refusing or delaying [disclosure] by Crown counsel.
    A high level of deference is owed to trial judges findings on the legitimacy
    of defence conduct:
Cody
, at para. 31. The appellant has not pointed
    to any palpable and overriding error in these factual findings and accordingly,
    in my view, there is no reason to interfere with the trial judges
    characterization of this period as defence delay.


ii.

June 3, 2019 to October 28, 2019

[47]

The trial judge attributed six weeks of delay
    during this period to the defence. He arrived at this conclusion after
    rejecting the Crowns argument that the entire delay between the adjournment of
    the November 2018 trial date to the ultimate October 28, 2019 trial date was
    caused by a discrete exceptional circumstance. After concluding that the
    adjournment of the trial did not meet the test for a discrete exceptional
    circumstance, he addressed the fact that the six-week trial could have
    commenced on June 3, 2019, but for the unavailability of defence counsel. He
    treated this six-week period, when the court and Crown counsel were available
    but the defence was not, as defence delay. In his view, because the system
    could not accommodate a trial after the six‑week block declined by the
    defence, the time that fell afterward does not count as defence delay because
    the court was unavailable to proceed.

[48]

The issue here, which is raised by the Crown, is
    whether the entire period from June 3 to October 28, 2019, which was the next
    available court date for the six‑week jury trial, ought to have been
    attributed to the defence. The Crown says that this is the logical result of
    applying
Jordan
,

and that post-
Jordan
case law sets
    a bright-line rule providing that, if defence unavailability causes a
    scheduling delay, then the defence must take complete responsibility for the
    entire period of delay. Counting this period as defence delay would result in a
    net delay of only 32 months.

[49]

In my view, the trial judge did not err in his characterization
    of the delay during this period. His conclusion that the defence was
    responsible for six weeks of delay, but not for the ensuing delay when the
    court could not accommodate the trial, is consistent with the directives of the
    Supreme Court in
Jordan
and
Cody
.

[50]

In
Jordan
, the Supreme Court identified
    the two components of defence delay as delay waived by the defence and delay
    caused solely by the conduct of the defence: at paras. 61 and 63. With respect
    to the latter, the court noted that this kind of defence delay comprises those
    situations where the accuseds acts either directly caused the delay  or the
    acts of the accused are shown to be a deliberate and calculated tactic employed
    to delay the trial: at para. 63. The court identified, as a straightforward
    example of defence delay, [d]eliberate and calculated defence tactics aimed at
    causing delay, which include frivolous applications and requests: at para. 63.

[51]

Importantly, however, the court continued with
    the following, and oft-quoted statement, at para. 64:

As another example, the defence will have
    directly caused the delay if the court and the Crown are ready to proceed, but
    the defence is not. The period of delay resulting from that unavailability will
    be attributed to the defence. However, periods of time during which the court
    and the Crown are unavailable will not constitute defence delay, even if
    defence counsel is also unavailable. This should discourage unnecessary
    inquiries into defence counsel availability at each appearance.

[52]

In
Cody
, the Supreme Court elaborated
    on its definition of this category of defence delay, describing it as delay
    which: (1) is solely or directly caused by the accused person; and (2) flows
    from defence action that is illegitimate insomuch as it is not taken to respond
    to the charges: at para. 30. The court cited again the example where the
    court and Crown are ready to proceed, but the defence is not: at para. 30.

[53]

Typically, aside from time legitimately taken to
    respond to the charges, the delay that results when the court and the Crown are
    ready to proceed and the defence is not is counted as defence delay:
R. v.
    Thanabalasingham
, 2020 SCC 18, 390 C.C.C. (3d) 400, at para. 9;
Jordan
,
    at para. 64. There is, however, a qualification: periods of time when the
    court and the Crown are unavailable will not constitute defence delay, even if
    defence counsel is also unavailable:
Jordan
, at para. 64.

[54]

The issue of defence delay in the context of
    defence unavailability was addressed recently by the Supreme Court in
R. v.
    Boulanger
, 2022 SCC 2, in an appeal from a decision of the Québec Court of
    Appeal that upheld a stay of proceedings for breach of the respondents s.
    11(b) rights. One of the issues concerned the attribution by the trial judge of
    112 days of delay to the defence between May 21 and September 10, 2019, where
    additional trial dates were required, and the defence was not available on
    certain dates in May 2019. Kasirer J., for the Supreme Court, concluded
    that the majority in the Court of Appeal was correct to intervene because this
    delay could not be attributed entirely to the respondent, despite the fact that
    his counsel was unavailable on certain dates. Referring to para. 64 of
Jordan
,
    where the court explained that where the court and the Crown are ready to
    proceed but the defence is not, the resulting delay is attributable to the
    defence, Kasirer J. noted that in some cases, the circumstances may justify
    apportioning responsibility for delay among [the participants in the criminal
    justice system] rather than attributing the entire delay to the defence. He
    recognized that the delay was caused by the conduct of defence counsel, as well
    as changes in Crown strategy, institutional delay and the courts lack of
    initiative in obtaining earlier dates. Kasirer J. stated that, in the
    particular circumstances of this case, it was fair and reasonable for the
    Court of Appeal to have apportioned responsibility for the 112-day delay,
    attributing up to half the delay to the defence (as well as ten additional days
    based on a defence concession in the Court of Appeal). In the end, however, the
    30-month
Jordan
ceiling was exceeded, no exceptional circumstance had
    been raised to justify exceeding the ceiling, and a stay of proceedings was
    warranted. The Supreme Court dismissed the appeal.

[55]

In my view, that is the appropriate approach to
    take in this case.

[56]

Once it is accepted that the reason for defence
    unavailability (other than legitimate defence preparation time) is not taken
    into account in determining defence delay, it does not necessarily follow, as
    the Crown urges this court to find, that there is a bright-line rule that,
    once the defence is unavailable,
all
of the delay until the next
    available date is characterized as defence delay. That would be inconsistent
    with the principle that the delay must be solely or directly caused by the
    defence, and the qualification that periods of time during which the court and
    the Crown are unavailable will not constitute defence delay, even if defence
    counsel is also unavailable:
Jordan
, at para. 64. Like Roberts J.A.
    in
R. v.

Albinowski
, 2018 ONCA 1084, 371 C.C.C. (3d) 190, I
    would reject the categorical approach proposed by the Crown that all of the
    delay following the rejection of a date offered by the court must be
    characterized as defence delay, and I agree with her statement that it is
    necessary to consider the circumstances of [the] case: at para. 46. The court
    must take a contextual approach that considers the circumstances relevant to
    whether, in respect of a particular period of time, the defence refusal of a
    date is the sole or direct cause of the resulting delay.

[57]

In some cases, it may be appropriate to
    attribute all of the delay to the defence: see, for example
R. v. McManus
,
    2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 33, and
R. v. Baron
, 2017
    ONCA 772, 356 C.C.C. (3d) 212, at para. 48, where in each case the defence
    requested an adjournment at the last minute of a multi-day hearing and the next
    available date was several months later. In these cases, there was no question
    that the defence caused the event that precipitated the need for new dates.
    This is delay solely or directly caused by the defence.

[58]

In the present case, however, a six-week jury
    trial had been scheduled for November 2018 when the matter first arrived in the
    Superior Court in January 2018, after specific consideration of when the
Jordan
threshold would be exceeded (February 2019). A last-minute adjournment was
    required because of the unexpected refusal of the surviving victim to testify,
    and the Crowns late disclosure of the cell phone data. The appellant offered
    to re-elect to avoid losing the original trial dates, and the Crown refused.
    Through significant efforts, including an adjustment to the trial judges
    schedule, the court was able to offer a six-week period commencing on June 3,
    2019 for the trial. Defence counsel was already scheduled for another matter,
    so the trial was scheduled to proceed on the next available dates in October
    2019. In these circumstances, the defence was only the direct or sole cause
    of the six-week delay starting June 3, 2019, because during this period the
    Crown and the court were ready to proceed and the defence was not. However,
    after that six-week period, there was no availability in the court schedule
    until October 28. The trial judge took the correct approach in concluding that
    this was not defence delay because the court was unable to accommodate the
    trial sooner.

[59]

The trial judge, in determining what portion, if
    any, of the delay between June and October 2019 should be attributed to the
    defence, applied an appropriate contextual approach that is faithful to
Jordan
.
    The trial judges refusal to attribute more than six weeks to the defence was,
    in the circumstances of this case, a fair allocation and entirely appropriate,
    considering that it was the trial adjournment that resulted in the need for new
    dates, and the court had no other dates available between June and October 28,
    2019. In the circumstances, it would not have been fair and reasonable to characterize
    as defence delay the remaining months when the court could not accommodate a
    trial. This was not delay that was solely or directly caused by the defence.

b)

The Transitional Exceptional Circumstance

[60]

The appellant contends that the trial judge
    erred in concluding that the transitional exceptional circumstance justifies
    the presumptively unreasonable delay in this case, given that only 6.5 months
    of the case occurred pre-
Jordan
and the cause of the delay exceeding
    the
Jordan
ceiling was the Crowns unreasonable refusal to consent to
    a re-election. The Crown contends that the trial judges approach to the
    transitional exceptional circumstance was based on his findings of fact and is
    entitled to deference.

[61]

A transitional case is one that was in the
    system when
Jordan
was released:
Jordan
,

at para.
    95;
Cody
, at para. 67. For such cases, a court can consider whether
    there is a transitional exceptional circumstance as a final step in the
    analysis after concluding that the net delay exceeds the threshold or is
    otherwise unreasonable:
Jordan
, at para. 96;
Cody
, at para.
    67. The transitional exceptional circumstance recognizes that all participants
    in the criminal justice system need time to correct their behaviour and to adjust
    to the new framework, which represents a significant shift from past
    practice:
Jordan
, at paras. 96-97, 108.

[62]

A transitional exceptional circumstance will
    apply when 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 involves a qualitative exercise:
Cody
, at para. 68. The court in
Jordan
observed that the
    analysis must always be contextual and sensitive to the manner in which the
    previous framework was applied, and the fact that the parties behaviour cannot
    be judged strictly, against a standard of which they had no notice: at para. 96;
    see also
R. v. Williamson
, 2016 SCC 28, [2016] 1 S.C.R. 741, at para.
    24;
R. v. Manasseri
,
    2016 ONCA 703,
132 O.R. (3d) 401, at paras. 320-21, leave to appeal
    refused, [2016] S.C.C.A. No. 513.

[63]

The relevant circumstances to be considered in the
    assessment of the transitional exceptional circumstance include: (i) the
    complexity of the case; (ii) the period of delay in excess of the
Morin
guidelines; (iii) the Crowns response, if any, to institutional delay; (iv)
    the defence efforts, if any, to move the case along; and (v) prejudice to the
    accused:
Picard
, at para. 71;
R. v. Gopie
, 2017 ONCA 728, 140
    O.R. (3d) 171, at para. 178. Factors that played a decisive role in whether
    delay was unreasonable under the previous framework, such as prejudice and the
    seriousness of the offence, may now inform whether any excess delay in
    transitional cases may be justified as reasonable:
Jordan
, at paras.
    96-98;
Cody
, at para. 70. Although a case may not be sufficiently
    complex to meet the requirements of exceptional circumstances under
Jordan
,
    for transitional cases moderate complexity bears on the reasonableness of the
    delay:
Picard
, at para. 73, citing
R. v. Pyrek
, 2017
    ONCA 476, 349 C.C.C. (3d) 554, at para. 30. The parties general level of
    diligence and the conduct of counsel are also relevant: see
Cody
, at
    para. 70;
R. v. Rice
, 2018 QCCA 198, 44 C.R. (7th) 83, at paras.
    202-3.

[64]

The court explained in
Cody
, at para.
    71, that the focus of the transitional exceptional circumstance for proceedings
    that occurred post-
Jordan
is as follows:

When considering the transitional exceptional
    circumstance, trial judges should be mindful of what portion of the proceedings
    took place before or after
Jordan
was released. For aspects of the
    case that pre-dated
Jordan
, the focus should be on reliance on factors
    that were relevant under the
Morin
framework, including the
    seriousness of the offence and prejudice.
For delay that accrues after
Jordan
was released, the focus should
    instead be on the extent to which the parties and the courts had sufficient
    time to adapt.
[Citation omitted; emphasis added.]

[65]

As noted earlier, the authorities make it clear
    that trial judges are generally in the best position to determine whether
    exceptional circumstances exist, including in the assessment of the
    transitional exceptional circumstance. Given the contextual and qualitative
    nature of this assessment, [w]e rely on the good sense of trial judges to
    determine the reasonableness of the delay in the circumstances of each case:
Jordan
,
    at para. 98. While typically deference is owed to such a determination, a clear
    legal error would justify interference:
Picard
, at para. 137. In this
    regard, the Québec Court of Appeal aptly observed in
Rice
, at para.
    207:

It falls to judges, relying on experience, to
    determine whether transitional exceptional circumstances may be invoked in a
    given case despite delays that could be characterized as being very long. This
    is a multifactor analysis that is, above all, the purview of trial judges. In
    this equation which is anything but mathematic, there is no perfect result.
    Though the analytical framework must be followed correctly, the weighing of the
    different factors leading to a reasonable assessment and result are protected
    from appellate intervention. [Translation.]

[66]

The appellant acknowledges that this is a
    transitional case  that is, that it was not an error for the trial judge to
    assess whether the transitional exceptional circumstance applied. The appellant
    contends, however, that the trial judge misunderstood how it applies. In
    particular, he erred in applying the
Morin
framework to the entire
    delay, and not just to the 6.5-month period that pre-dated
Jordan
. The
    appellant argues that the Crowns refusal to consent to the defence re-election
    occurred more than two years after the release of
Jordan
and that,
    contrary to the trial judges assessment, the parties had sufficient time to
    adapt to the new regime. The appellant relies on certain
obiter
comments in
R. v. Gordon
, 2017 ONCA 436, 137 O.R. (3d) 776, and
Picard
,
    decisions of this court that

were released in May and September 2017
    respectively, to say that the Crown was on notice that its decision to oppose
    the defence re-election would be considered unreasonable delay post-
Jordan
.
    Finally, the appellant contends that the transitional exceptional circumstance
    ought not to have been applied where the Crowns mistake was a tactical
    decision that ignored the teachings of
Jordan
and manifested the
    culture of complacency that
Jordan
was meant to eradicate.

[67]

I disagree. There was no reversible error in the
    trial judges assessment of the relevant factors and his conclusion that the net
    delay, which exceeded the
Jordan
ceiling by five months, was nevertheless
    justified, having regard to the transitional exceptional circumstance.

[68]

First, the trial judge properly articulated
    the relevant principles to guide his analysis and the exercise of his
    discretion: see paras. 51-62 of his reasons. He specifically adverted to the
    relevant passages from
Jordan
,
Cody
and
Williamson
and
    he referred to this courts decision in
Picard
.

[69]

Second, while the trial judge considered
    the entire delay through the lens of
Morin
in assessing whether the
    transitional exceptional circumstance ought to apply, he did not make the error
    alleged by the appellant. The trial judge did not collapse the pre- and post-
Jordan
delay. In fact, he specifically referred to the fact that only
    approximately six months of the delay occurred pre-
Jordan
as a factor
    in his overall analysis. The trial judge found that the parties had not had
    sufficient time to adapt to the new framework. Although they were aware of
Jordan
,
    they had not yet learned its more difficult lessons and changed their behaviour
    accordingly. Therefore, as was required as part of the transitional exceptional
    circumstance analysis, the trial judge conducted an exhaustive assessment of
    the entire delay under the
Morin
framework. He disagreed with the
    defence submission that the overall delay would have been intolerable under
Morin
.
    Contrary to the appellants suggestion, however, the
Morin
analysis
    was not determinative. It was but one factor in the trial judges qualitative
    and contextual analysis.

[70]

Third, as he was required to, the trial judge
    conducted a contextual assessment of the relevant factors. Recognizing that the
    case was only under the
Morin
framework for around six months, and
    citing para. 71 of
Cody
, he noted that for post-
Jordan
delay,
    the focus was properly on the time the parties had to adapt.

[71]

The trial judge noted that the assessment was
    qualitative, rather than quantitative, and contextual. He considered the
    following factors: that the case was of moderate complexity; that under the
Morin
guidelines, the delay was two months above Superior Court guidelines, but under
    the OCJ guidelines and the total guidelines; that the Crowns response to delay
    was impressive until the trial adjournment; that defence efforts to move the
    case along were non-existent until that time; and that there was inherent
    prejudice to the accused. He identified two additional relevant factors: the
    time the case was under the
Morin
framework and, relying on
Cody
,
    at para. 70, the serious nature of the offences alleged.

[72]

The trial judge observed that the assessment was
    difficult: Up until the first trial date Crown counsel conducted themselves
    impeccably in [avoiding delay]. They repeatedly and vigorously pushed the
    system for quicker settings. In marked contrast, up until the first trial date,
    the defence caused delay and showed no interest in pushing the case forward. He
    noted that the Crown made a major misstep in refusing to consent to the
    defence re-election when the jury trial was adjourned, and that, without
    considering the transitional exceptional circumstance, a stay would have
    resulted. The trial judges analysis continued, at paras. 274-78:

I cannot and do not ignore the Crowns major
    misstep. The Crown was aware of the s. 11(b) problem and did not react well.
    But the analysis here is not limited to one misstep by one party, rather it
    must be contextual in consideration of all of the circumstances.

I am fully aware of the following admonition
    in
Jordan
, at para. 98:

[T]he s. 11(b) rights of all accused
    persons cannot be held in abeyance while the system works to respond to this
    new framework. Section 11(b) breaches will still be found and stays of proceedings
    will still be entered for cases currently in the system. For example, if the
    delay in a simple case vastly exceeds the ceiling because of repeated mistakes
    or missteps by the Crown, the delay might be unreasonable even though the
    parties were operating under the previous framework. The analysis must always
    be contextual. We rely on the good sense of trial judges to determine the reasonableness
    of the delay in the circumstances of each case.

The
Jordan
decision brought radical
    changes to our courts. The Supreme Court seeks to effect real change. The Court
    was fully aware that change takes time. It was sensitive to the need for time
    to adapt. The necessary changes, even now, continue to be identified.
The
    hard cap numbers and the math are the easy part. More difficult is an
    understanding of the needed adaptations to conform to the frameworks
    bright-line rules. The pace and the rhythm of cases flowing through the system
    must change. How to effect the change is not easy to grasp nor to effect. The
    course of a river is never easy to alter.

There is no question here that Crown counsel
    was aware of the
Jordan
decision within weeks of its release. Crown
    counsel referred to
Jordan
by name in the OCJ when pressing for
    quicker dates.
But awareness of the presumptive ceiling and the need for
    speed are the easiest lessons of
Jordan
.
Jordan
introduced a totally new
    framework with new concepts and new definitions: defence delay, discrete
    exceptional circumstances, particularly complex cases, and transitional
    exceptional circumstances. The precise meaning of these new concepts continues
    to be refined in court cases more than two years after the release of
Jordan
. It is the full understanding of the
    lessons of
Jordan
that Crown counsel and the courts lagged in their
    adjustment in this case.
This is most notable in the OCJ where the case
    stalled, quite unnecessarily in most instances, without understanding. No
    longer can the courts in the OCJ unquestioningly go along with defence requests
    for delay before setting a JPT. The JPT is intended to advance cases, including
    as the forum to identify and resolve disclosure issues. The JPT should not
    evolve into a mechanism to retard cases. And, perhaps unfortunately, no longer
    can the Crown and the courts accommodate the defence in extending preliminary
    hearings for defence discovery without holding the defence responsible for that
    extra time. These too are lessons of
Jordan
to which we must adapt.

Viewing this case as a whole, in the OCJ while
    the Crown was pushing and making commendable efforts to be fair, the defence
    sat back, complained generally about disclosure, and let the time-clock keep
    ticking. Then, on the edge of the
Jordan
cliff, the Crown was
    confronted by a serious delay-causing event. The Crown did not respond well. If
    my assessment rests on this Crown decision, the Crown loses. But it cannot and
    does not rest on that decision. And this is not a case where the Crown made
    repeated missteps. I am to assess contextually and qualitatively. In that
    assessment, I find that the Crown has established that the time it will take to
    try this case is justified based on the parties reasonable reliance on the law
    as it previously existed. [Emphasis added.]

[73]

The trial judge properly considered not only the delay that was
    occasioned by the Crowns misstep, but also the overall progress of the case,
    when he concluded that the parties had not yet adapted to the lessons of
Jordan
.

He aptly observed that
Jordan
introduced new concepts and
    definitions that the case law was continuing to interpret. Although the parties
    may have been aware of
Jordan
, they had not had sufficient time to
    adapt to its lessons. As an example of the time taken to adapt, the trial judge
    referred to the continued conduct of the defence in delaying setting a judicial
    pre-trial which persisted both before and after the release of
Jordan
.

[74]

As the appellant notes, this courts decisions
    in
Gordon
and
Picard
were released in 2017, about a year after
Jordan
. I do not, however, agree with the appellant that these cases
    would have made it clear to the Crown that its refusal to consent to a
    re-election would necessarily lead to a stay. Nor do I agree with the appellant
    that the Crowns misstep was a tactical decision that ignored the teachings
    of
Jordan
and manifested the culture of complacency that
Jordan
was meant to eradicate.

[75]

In both
Gordon
and
Picard
, the
    transitional exceptional circumstance was applied where the net delay well
    exceeded the
Jordan
threshold (44 months in
Gordon
and 40
    months in
Picard
). In
Gordon
,

this court deferred to
    the decision of the trial judge to refuse a stay, notwithstanding that the
    Crowns refusal to accept the accuseds re-election in part caused a nine-month
    delay. Doherty J.A. saw no reason to disagree with the factual findings
    underlying the trial judges allocation of the various time periods: at para.
    22. Noting that the Crowns decision must be considered in the context of other
    steps the Crown took at about the same time, in attempting to shorten the trial
    and to obtain earlier dates for a jury trial, and that there was no evidence of
    any repeated mistakes or missteps by the Crown that contributed to the delay,
    he stated that [p]laced in its proper context, the Crowns refusal to consent
    to a re-election in June 2014 cannot be described as a misstep. Nor does it
    reflect the culture of complacency that so concerned the court in
Jordan
:
    at para. 26. He went on to observe, at para. 27, that [t]he Crowns decision
    to keep the jury and consequently delay the trial, while probably unreasonable
    in the context of the hard cap approach in
Jordan
, was reasonable in
    the context of the
Morin
analysis as applied to the chronology of this
    case. The delay in the case was well within the
Morin
guidelines.
    Additional factors weighing against granting a stay under
Morin
were
    the fact that the case was moderately complex and the seriousness of the
    offences.

[76]

Picard
involved
    the appeal of a stay of a murder charge. This court allowed the appeal, concluding
    that the trial judge, among other things, erred in law in refusing to consider
    the transitional exceptional circumstance after finding that Crown and
    institutional delay exceeded the guidelines under the
Morin
framework.
    Rouleau J.A. concluded that the delay was under the
Morin
guidelines.
    He also disagreed with the trial judges characterization of the Crowns
    refusal to accept earlier trial dates and to expedite the trial based on the
    unavailability of the two assigned Crowns as an example of the Crown making a
    choice that paid no heed to the accuseds s. 11(b) rights: at para. 133.
    Rouleau J.A. noted that, as a result of the decision in
Jordan
, a
    decision such as the one the Crown made in this case would weigh heavily
    against the Crown and might in fact be determinative as to whether a stay
    should issue: at para. 130. Because this was a transitional case, however, he
    went on to consider whether the delay was justified by the transitional
    exceptional circumstance. He referred to excerpts from
Jordan
noting
    that it will be relatively rare for the delay in cases already in the system
    when
Jordan
was decided that complied with
Morin
to be found
    unreasonable under
Jordan
, and he observed that this was not a case
    where the parties had time following the release of
Jordan
to correct
    their behaviour. The few months of delay that accrued after
Jordan
were not enough time for the parties and court to adapt. Noting that this was a
    difficult case, and after weighing all of the factors, he concluded that the
    delay above the presumptive
Jordan
ceiling was justified by the
    transitional exceptional circumstance: at paras. 137-141.

[77]

The appellant focuses on the fact that most of
    the delay in
Gordon
and
Picard
was pre-
Jordan
and on
    the comments in each case suggesting that the result might have been different
    under a
Jordan
analysis. However, this is precisely what the trial
    judge observed in the present case  under the hard cap approach in
Jordan
(to echo Doherty J.A. in
Gordon
), a stay would have resulted. As
    a transitional case, however, it warranted an evaluation as to whether the
    delay was nevertheless justified because of the time required to adapt to the
    lessons of
Jordan
.

[78]

The trial judge properly considered the factors
    that supported the existence of a transitional exceptional circumstance. He
    accepted the points raised in this court by the appellant: first, that the pre-
Jordan
delay was only 6.5 months, and that Crown counsel was aware of
Jordan
and its implications as soon as it was released, and second, that the Crown had
    made a serious misstep in not accepting the appellants re-election, which
    would have avoided the s. 11(b) issue. Importantly, however, he noted that the
    precise meaning of the new concepts introduced in the
Jordan
framework
    continued to be refined some two years after
Jordan
had been decided.
    This is an important observation in the context of this case: the case law was
    evolving, and the Crown might well have concluded that the trial delay that
    occurred just prior to the estimated
Jordan
ceiling date would qualify
    as a discrete exceptional circumstance or be attributed in part to the defence
    or that, based on
Gordon
and
Picard
,

there was a transitional
    exceptional circumstance.

[79]

The trial judge also looked at the overall pace
    of the case, observing as an example of the time to adapt, the stalling of the
    case in the OCJ because of defence counsels repeated adjournment requests.
    Some delay preceded
Jordan
but there was little change in the defence
    approach even after
Jordan
was released. The trial judge properly, in
    my view, took into consideration the overall Crown and defence approaches to
    the progress of the case, as well as the fact that on the edge of the
Jordan
cliff the Crown made one serious misstep. This informed the trial judges
    assessment that the Crown had established that the time it will take to try
    this case is justified based on the parties reasonable reliance on the law as
    it previously existed.

[80]

As the authorities recognize, a trial judge is
    in the best position to evaluate, in a transitional case, whether the overall
    delay was justified by the transitional exceptional circumstance. The trial
    judge here, after considering all of the factors, and with due regard for the
    fact that only about six months of the case occurred pre-
Jordan
, carefully
    explained why he had reached his decision. He concluded that the parties had
    not had sufficient time to adapt to the lessons of
Jordan
after
    properly considering not just the Crown misstep that pushed the case over the
Jordan
threshold, but the conduct of both parties throughout. The conclusion that
    the delay was justified by the transitional exceptional circumstance reveals no
    error in law, and is entitled to deference.

[81]

For these reasons, I would reject the
    appellants argument that the trial judge erred in applying the transitional
    exceptional circumstance.

III.

THE ALLEGED ERRORS IN THE CHARGE

[82]

The appellant submits that, based on three
    passages from the jury charge, the trial judge erred by instructing the jury
    that its decision on the ultimate issues would depend on which version of
    events it accepted. In doing so, the trial judge framed the case as a
    credibility contest, shifting the burden of proof to the appellant and undermining
    the presumption of innocence. Apart from the impugned passages, the appellant
    takes no objection to the trial judges instructions. Nevertheless, the
    appellant asserts that the trial judges error, based on the three impugned
    passages, renders the verdict unsafe and necessitates a new trial.

[83]

The Crown contends that the appellants argument
    must fail for three reasons. First, it is undermined by the jurys verdict. The
    jury acquitted the appellant of murder and attempted murder, and found him
    guilty of manslaughter and discharge with intent to wound. There was no path to
    this outcome if the jury had felt compelled to accept one of the two
    conflicting versions of events in its entirety. Second, the whole of the charge
    shows that the trial judge took care to emphasize, on several occasions, that
    the jury must consider all the evidence in making its findings and should not
    treat the case as a credibility contest. Third, defence counsel did not raise
    any objection to the adequacy of the charge on this issue.

(1)

The Two Versions of the Events

[84]

The Crown alleged that the appellant had
    intentionally shot two individuals with the intent required for murder:
    Alekesji Guzhavin, who died at the scene, and Gregory Henriquez, who survived,
    but was paralyzed, and testified by video at the trial. The appellant
    acknowledged that he had shot both men, but asserted that the shootings were
    not intentional, and that they occurred in defence of himself and his family.

[85]

From the outset of the trial, it was apparent
    that there were two versions of the events, that of Mr. Henriquez and that of
    the appellant, and that these two versions differed both in broad terms and in
    their respective details. The defence position, supported by the appellants
    evidence, was that he wrestled a gun from Mr. Guzhavin and, in self-defence and
    defence of his family, shooting blindly, he shot both men. According to Mr.
    Henriquezs version, which was relied on by the Crown, the appellant turned on
    him and Mr. Guzhavin with a gun, shooting Mr. Henriquez as he was fleeing,
    and then shooting Mr. Guzhavin. While there was a great deal of other evidence
     including the testimony of police officers about their observations of the
    scene, forensic evidence about the bullet wounds to the two victims, and a recording
    of gun shots  the appellant and Mr. Henriquez were the only eye-witnesses to
    the events.

[86]

The fact that there were competing,
    conflicting or different versions of the events was obvious to everyone in
    the courtroom, and a repeated refrain of counsel and the trial judge. Indeed,
    during closing arguments, defence counsel focussed on comparing the accounts of
    the events proffered by the Crown and the appellant, pointing to aspects of the
    two versions on more than 15 occasions, and urging the jury to reject Mr.
    Henriquezs version of what occurred and to accept some or all of the
    appellants version. The trial Crown referred to the two versions of events
    on some five occasions. The trial judge referred to the different versions
    throughout his charge, including in his summary of the defence and Crown
    positions, using wording provided by counsel.

[87]

The issue is not whether the trial judge erred
    in his characterization of the two accounts as different versions that could
    not both be true, and in his repeated reference to aspects of the evidence of
    the two eye-witnesses as versions. Rather, the question is whether the jury
    was properly instructed with respect to (a) the approach they needed to take in
    assessing the evidence, and in particular the evidence of the appellant, in
    circumstances where Mr. Henriquez had provided conflicting evidence; and (b)
    the burden of proof.

(2)

Relevant Legal Principles

[88]

The legal principles that are applicable to the
    analysis of this ground of appeal can be stated briefly.

[89]

First, the general rule is that a jury should
    not be left with the impression that they can or should decide a case based on
    whether they accept either the accuseds evidence or the Crowns evidence. It
    is essential that the jury understand that they must acquit if, without
    believing the accused, and after considering the accuseds evidence in the
    context of the evidence as a whole, they have a reasonable doubt as to his
    guilt:
W.(D.)
, at p. 757.

[90]

Second, the adequacy of jury instructions is not
    determined according to the interpretations that might be given to select or
    isolated passages from a charge. Any alleged deficiencies must be assessed in
    the context of the entire charge and the trial as a whole. It is an error to
    examine minute details of the charge in isolation, as it is the overall effect
    of the charge that matters:
R. v. Araya
, 2015 SCC 1, [2015] 1 S.C.R.
    581, at para. 39. Where, as here, the contention is that the trial judge erred
    in suggesting that the jury should choose between competing versions, and in
    effect depart from a proper
W.(D.)
analysis, the question is whether
    the charge when read as a whole makes it clear that the jury could not have
    been under any misapprehension as to the correct burden and standard of proof:
W.(D.)
,
    at p. 758.

[91]

Third, it is relevant in determining whether
    there was a misdirection to consider whether the deficiency in the charge
    alleged on appeal was raised at first instance. While failure to object to
    jury instructions is not determinative on appeal, it nonetheless says
    something about both the overall accuracy of the jury instructions and the
    seriousness of the alleged misdirection:
Araya
, at para. 51, citing
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 38.

(3)

The Impugned Passages

[92]

The passages relied on by the appellant as
    reflecting a misdirection arise in the context of the trial judges
    instructions on self-defence. The first excerpt appears at p. 71 of the
    transcript of the charge, when the trial judge stated:

I suggest to you that the major issue for you
    to decide is whether Dia Hanan was acting in lawful self defence when he shot
    Alekesji Guzhavin and Gregory Henriquez. Intention is also an issue; did Mr.
    Hanan have the required intent for murder when he shot Alekesji Guzhavin and
    did he have the required intent for attempt murder when he shot Gregory
    Henriquez.

The resolution of these issues, I suggest
    to you, is driven in large part on which version you accept. The two versions
    you have heard cannot both be true.
Of course, you
    must resolve this decision according to the law as given to you. In making your
    assessment, you may find it helpful to examine the physical and independent
    evidence you do accept to see whether each version is consistent or
    inconsistent with that evidence. [Emphasis added.]

[93]

The appellant also contends that the jury was
    misdirected in two additional passages from the charge relating the
    reasonableness element of self-defence. In relation to self-defence in the
    killing of Mr. Guzhavin, the trial judge stated at pp. 89-90:

The reasonableness of the shooting of Mr.
    Guzhavin by Mr. Hanan is largely dependent on which of the two conflicting
    versions you accept.
According to Mr. Hanan, Mr.
    Guzhavin, with the assistance of Mr. Henriquez, was extorting money from him at
    gunpoint and threatening to involve Mr. Hanans family. According to Mr.
    Henriquez, although he did not know Mr. Hanan at all and did not know Mr.
    Guzhavin well, nothing was violent or threatening at the scene until he saw Mr.
    Hanan with a gun shooting Mr. Guzhavin.

You may conclude that shooting Mr. Guzhavin
    under Mr. Hanans version is reasonable but shooting Mr. Guzhavin under Mr.
    Henriquezs version is unreasonable. Again
you may find that the resolution
    of this issue hinges upon which version is accepted
. [Emphasis added.]

[94]

And in relation to the reasonableness of the
    appellants shooting of Mr. Henriquez, the trial judge stated at pp.
    110-111:

Was it reasonable to shoot Mr. Henriquez?
The
    answer again is largely dependent upon which version is accepted.
If you
    accept the version of Mr. Hanan that Mr. Henriquez was shot during or
    immediately after the struggle over the gun, then you approach your assessment
    from that point of view to determine whether the shooting of Mr. Henriquez was
    reasonable under all the circumstances. If, on the other hand, you accept the
    evidence of Mr. Henriquez that he was shot in the back while trying to run
    away, then you may consider the reasonableness of such conduct. [Emphasis
    added.]

[95]

In each passage, according to the appellant, the
    trial judge framed the case as an either/or contest between duelling versions,
    and corralled the jury into accepting either the appellants version or Mr.
    Henriquezs version, to the exclusion of a third possibility where neither
    version was accepted. Moreover, the trial judge suggested that the appellant
    could be acquitted only if his version was accepted, shifting the burden to the
    appellant to prove his innocence.

(4)

Discussion

[96]

When the impugned passages are considered, as
    they must be, in the context of the trial judges very clear instructions on
    the assessment of the evidence, and the live issues in this trial, I am
    satisfied that there is no reasonable prospect that the jury would have
    understood that they were to decide what happened by simply choosing between
    competing accounts. The trial judge provided careful and detailed instructions
    about the legal elements of the defence of self-defence, identified the
    questions the jury was to determine, and related the evidence to those
    questions. The jury was not misdirected on how they were to approach the
    evidence or on the burden of proof.

[97]

First, the impugned passages were preceded and
    followed by detailed and appropriate instructions about how the jury should
    approach their task when dealing with two different versions of events.

[98]

Early in the charge, at page 10 of the
    transcript, under the heading Burden of Proof in a Conflicting Versions Case
    (the jury was provided with a written copy of the charge), the trial judge
    presented a summary of the evidence of each of the appellant and Mr. Henriquez
    about what happened at the scene. He then instructed the jury on how they
    should approach the evidence of these two witnesses, referring back to
    instructions he had given earlier on the burden and standard of proof. He cautioned
    the jury specifically that they were not to choose between two versions, but to
    decide whether, on all the evidence, or the lack of evidence, the Crown had
    proven its case against the appellant beyond a reasonable doubt. The trial
    judge stated, at p. 12:

When deciding this case, I remind and caution
    you to never forget my instructions I just gave you on the burden and standard
    of proof. The Crown always has the burden to prove the guilt of Mr. Hanan. That
    burden never shifts to the defence.
So, when you are confronted with two
    conflicting versions, as you are here, you do not approach it asking which
    version do you prefer. You do not decide this case on which version you prefer.
    This is not a contest between duelling versions, and you must not approach it
    in that fashion. You are not here to make that kind of choice. Rather, you must
    decide whether, on all the evidence, or the lack of evidence, the Crown has
    proven its case against Mr. Hanan beyond a reasonable doubt.
[Emphasis
    added.]

[99]

This was immediately followed, at pp. 12-13, by
    an instruction on how to approach the appellants testimony and a
W.(D.)
instruction:

Dia Hanan has testified. You will assess his
    evidence in the same way that you assess the testimony of any other witness.
    Recall what I said to you earlier about how to decide how much or how little
    you believe of and rely upon the testimony of any witness. You may believe
    some, none or all of Mr. Hanans testimony.

However, when an accused person testifies at
    his trial, as Mr. Hanan did here, because of the law on presumption of
    innocence and burden of proof as I instructed you, the law requires you, the
    fact finder, to approach your ultimate decision making in a particular manner.

First, if you believe Dia Hanans evidence
    that he did not commit the offence as charged, that all his actions were in
    lawful self defence, you must find him not guilty.

Second, even if you do not believe Dia Hanans
    evidence, if it leaves you with a reasonable doubt about his guilt, about an
    essential element of an offence charged, or about self defence, you must find
    him not guilty of that offence.

Third, even if Dia Hanans evidence does not
    leave you with a reasonable doubt of his guilt, about an essential element of
    the offences charged, or about self defence, you may convict him only if the
    rest of the evidence that you do accept proves his guilt beyond a reasonable
    doubt.

To make your decision, you should consider
    carefully, and with an open mind, all the evidence presented during the trial.
    It will be up to you to decide how much or little you will believe and rely
    upon the testimony of any witness. You may believe some, none or all of it.

[100]

The trial judge repeated this specific direction later in the charge
    after his instructions on the intent required for murder, at pp. 96-97 of the
    transcript, under the heading, Reminder of How to Assess Conflicting
    Versions.

[101]

The trial judge provided similar instructions on a number of
    occasions throughout the charge, as he addressed the specific elements of each
    offence and the defence of self-defence, on each occasion tailoring the
    instructions to the particular issue, after summarizing the relevant evidence
    and relating it to the particular element. In fact, specific instructions of
    this nature were provided immediately after both of the second and third
    passages criticized by the appellant. The appellant does not take issue with
    any of these instructions.

[102]

Second, it is important to note that the trial judge never suggested
    to the jury that they were to accept the
whole
of the testimony of
    either the appellant or Mr. Henriquez; to the contrary, he repeatedly
    emphasized that they could accept, some, all or none of the evidence of any
    witness, including the two eye-witnesses. The jury was not invited to choose
    between the entire accounts provided by the two eye-witnesses, nor did they do
    so. There were many details within the testimony of each, for example, Mr.
    Henriquezs evidence about the appellant pointing the gun at Mr. Guzhavin and
    saying, Die, motherfucker, die. Clearly, by its verdict, the jury did not
    accept this part of Mr. Henriquezs evidence.

[103]

In some instances, the trial judge used the word version to refer
    to the broad outlines of the evidence of the defence and Crown positions: that
    the appellant, acting in self-defence, grabbed the gun from Mr. Guzhavin and
    started shooting, or that the appellant pulled out a gun and shot Mr. Guzhavin
    and Mr. Henriquez, without any prior violence. On other occasions, the
    trial judge referred to specific aspects or details of the evidence of the
    appellant and Mr. Henriquez as versions in the course of relating the
    evidence to a particular issue.

[104]

This is what occurred in the second and third passages criticized by
    the appellant. These impugned passages are from the trial judges instructions
    on the reasonableness of self-defence, first in relation to the shooting of
    Mr. Guzhavin, and then in relation to the shooting of Mr. Henriquez.

[105]

The trial judge, after explaining what was meant by the
    reasonableness element, reviewed the evidence that was relevant to the jurys
    determination of this issue. It was in this context that, in the second
    impugned passage, he identified as conflicting versions the appellants
    evidence that Mr. Guzhavin and Mr. Henriquez were extorting money from the
    appellant at gunpoint, and threatening to involve his family, and Mr.
    Henriquezs evidence that, although he did not know the appellant at all and
    did not know Mr. Guzhavin well, nothing was violent or threatening at the scene
    until he saw the appellant with a gun shooting Mr. Guzhavin. The trial judge
    properly instructed the jury that they might conclude that shooting Mr. Guzhavin
    under the appellants version was reasonable but shooting him under Mr.
    Henriquezs version was not. He went on to review other evidence that the jury
    might examine, as well as the reasonableness of the different versions, in
    relation to the parties physical sizes, and the evidence about the presence or
    absence of injuries. He concluded his discussion with a direction on reasonable
    doubt.

[106]

The third impugned passage reflects a similar approach, where, in
    instructing the jury on the reasonableness element of self-defence in relation
    to the shooting of Mr. Henriquez, the trial judge referred to the two
    versions being the appellants evidence that Mr. Henriquez was shot during or
    immediately after a struggle over the gun, and Mr. Henriquezs evidence that he
    was shot in the back while trying to run away.

[107]

When these passages are read in context, it is apparent that the
    trial judge, in referring to the two versions, was reminding the jury of the
    evidence of the two eye-witnesses that was relevant to their determination of
    the reasonableness of the appellants conduct, as an element of self-defence.
    This was a necessary instruction for the jury to relate the evidence to the
    reasonableness element of self‑defence, in order that they might make the
    required finding of fact and approach the question of the reasonableness of the
    appellants conduct in the context of each of these factual circumstances.
    Indeed, the trial judge concluded each of these passages with a reminder that
    the jury should consider all of the evidence, and a reasonable doubt
    instruction.

[108]

The trial judge did not, as the appellant asserts, set up a choice
    between two competing versions, suggesting to the jury that, unless they
    accepted the appellants account, they had to convict him. Rather, he helped
    the jury to focus on how to approach the reasonableness issue, depending on
    their assessment of the evidence.

[109]

Third, the appellants reliance on
R. v. Austin
(2006), 214
    C.C.C. (3d) 38 (Ont. C.A), is misplaced. In that case, which involved sexual
    assault charges, the jury had asked several questions during their
    deliberations, including how reasonable doubt related to the assessment of
    witness credibility. The trial judges answer invited the jury to decide the
    case based on who they believed, without regard to the requirement that the
    Crown prove the case beyond a reasonable doubt. The jury was led to believe
    that its task was to determine which of two versions of an event was true. The
    jury was not instructed that, if it could not decide whose story to believe, it
    must acquit.

[110]

The appellant argues that the trial judge deprived the jury of the same
    understanding in this case. However, unlike what happened in
Austin
,
    the trial judge here did not lead the jury to believe that its task was to
    determine which of the versions  that of the appellant or that of Mr.
    Henriquez  was true. In the context of all of the other instructions given by
    the trial judge, it would have been clear that the trial judge, just as counsel
    had done, was drawing the jurys attention to the different details in the
    competing narratives. The trial judge provided detailed instructions on how the
    jury should approach the evidence, including specific instructions that this
    was not a choice between the two accounts, repeated references to the need to
    assess all of the evidence, and the reminder that they could accept, some, all
    or none of a witnesss evidence.

[111]

The trial judge methodically addressed the elements of each of the
    offences and of the defence of self-defence. In each instance, he reminded the
    jury of the relevant evidence (including relevant parts of the testimony of the
    appellant and Mr. Henriquez), and he related the evidence to the particular
    element. He instructed the jury on how to approach the evidence, repeatedly instructing
    the jury that you may find that the physical and independent evidence may
    assist you in your assessment of the conflicting evidence. In respect of each
    element, he reminded the jury of the Crowns burden of proof beyond a
    reasonable doubt  whether to prove an element of the offence, or to negate an
    element of self‑defence. It was never suggested that the jury had to
    decide which version in its entirety was believed, or more importantly, that in
    order to acquit, the jury had to accept all the details of the appellants
    version.

[112]

Fourth, the fact that the objection now raised on appeal was not
    raised by defence counsel at trial is significant. The pre-charge conference
    extended over several days, with multiple drafts of the jury charge provided to
    counsel. Defence counsel, although making many submissions and suggestions for
    changes to the draft, including on the defence of self-defence, did not express
    any concern about the language that the appellant points to in this appeal. As
    the Supreme Court noted in
Araya
, at para. 51:

It is also relevant that Mr. Arayas trial
    counsel (not counsel on appeal)  the person in the courtroom most attuned to
    Mr. Arayas interests  did not object to the allegedly confusing and
    insufficient instruction at trial. This failure to object suggests that the
    phrasing of this instruction, heard in its full context in the courtroom, did
    not sound likely to confuse or to invite improper reasoning. This Court has
    stated that while defence counsel's failure to object to jury instructions is
    not determinative on appeal, it nonetheless says something about both the
    overall accuracy of the jury instructions and the seriousness of the alleged
    misdirection:
Jacquard
, at para. 38.

[113]

I would therefore not give effect to this ground of appeal, and
    would dismiss the conviction appeal.

IV.

SENTENCE APPEAL

[114]

The appellant seeks leave to appeal his sentence of 15 years
    imprisonment, less 23 months credit for pre-sentence custody and 6 months
    credit for restrictive bail conditions (an effective global sentence of 12
    years and 7 months). He was sentenced to 12 years and 7 months for the
    manslaughter of Mr. Guzhavin, 3 years concurrent for possession of a loaded
    restricted firearm without a license; and 10 years concurrent for discharge of
    a firearm at Mr. Henriquez with intent to wound.

(1)

The Parties Positions

[115]

The appellant submits that the trial judge imposed a demonstrably
    unfit sentence and that eight years imprisonment would have been a more
    appropriate global sentence. He raises two arguments in support of this
    submission. First, he says that the trial judge sentenced him for murder rather
    than manslaughter on the basis that, immediately before passing sentence, the
    trial judge said, Mr. Hanan, you unlawfully and intentionally ended the life
    of one person and forever crippled the life of another. The appellant also
    submits that the trial judge engaged in flawed reasoning in accepting the
    core of Mr. Henriquezs version. This core, the appellant says, led to the
    inevitable conclusion that Mr. Hanan had the intent for murder, which is
    inconsistent with the verdict the jury reached.

[116]

In response, the Crown contends that the appellants argument about
mens
    rea
lifts the trial judges statements out of context, and when his
    reasons are considered as a whole, it is clear that the trial judge did not
    sentence the appellant as though he had the
mens rea
for murder.
    Moreover, the appellants evidence was a hybrid of self-defence and accident.
    As such, when the trial judge spoke to the appellant and said that he
    intentionally ended one persons life, after saying he lacked the intent to
    kill, it is clear he was referring to the appellants intention to shoot the
    victims (i.e., this was no accident), not to kill them.

[117]

The appellants second argument is that the trial judge erred in
    finding that he brought the gun to the scene. This finding could only have been
    based on Mr. Henriquezs evidence, which the jury must have rejected
    because it found the appellant not guilty of murder. The appellant submits that
    the trial judge erred in failing to follow the rule that a trial judge must
    accept the factual implications of the jurys verdict.

[118]

For its part, the Crown contends that the appellants second
    argument relies on the false premise that there was a wholesale rejection of Mr.
    Henriquezs evidence by the jury, instead of just parts of it. In any event,
    after reviewing the evidence in detail, the trial judge made his own finding
    that the appellant brought the gun.

(2)

Discussion

[119]

While I would grant leave to appeal the sentence, I would dismiss
    the sentence appeal.

[120]

The trial judge provided comprehensive and thorough reasons for the
    sentence he imposed. There is no suggestion that he erred in his articulation
    of the relevant sentencing principles, and in his assessment of the relevant
    factors, including mitigating and aggravating factors. It is clear, from a
    review of the reasons as a whole, that the trial judge, despite using the
    language of intention, did not sentence the appellant for an intentional
    killing; rather, he properly concluded that the shooting was intentional, in
    that it was not accidental, but that the appellant did not shoot with intent to
    kill. At para. 2 of his sentencing reasons the trial judge stated:

Mr. Hanan intentionally and unlawfully shot
    two people killing one and paralyzing the other. He did not act in lawful
    self-defence. He shot without an intent to kill. He shot with a handgun that
    was illegal for him to possess. This is the conduct for which Mr. Hanan now is
    being sentenced.

[121]

Later in his reasons, under the heading Circumstances of the
    Offence, the trial judge provided a similar summary, referring to the fact
    that the appellant intentionally and unlawfully shot the victims and that he
    shot without an intent to kill.

[122]

It is true that in the passage of the transcript relied on by the
    appellant, the trial judge addressed him directly and said that he unlawfully
    and intentionally ended the life of one person and forever crippled the life of
    another. However, the entirety of his reasons make it clear that the trial
    judge sentenced for the offences that were committed by the appellant, and not
    as though he had intentionally killed, that is, murdered, Mr. Guzhavin.

[123]

I also do not accept the appellants submission that the trial
    judges conclusion that the killing was intentional was based on his faulty
    reasoning that, by its guilty verdict on manslaughter and the two firearm
    offences, the jury rejected Mr. Hanans version of the shooting and accepted
    the core of Mr. Henriquezs version, which according to the appellant was
    consistent only with an intentional killing.

[124]

In their submissions on sentencing, counsel asked the trial judge to
    make findings of fact with respect to four matters: (1) who brought the gun to
    the scene of the shootings; (2) how the shootings happened; (3) whether Mr.
    Henriquez was shot in the back; and (4) whether the shooting caused Mr.
    Henriquezs paralysis. The trial judge agreed to do so, after concluding that
    such findings were necessary in order to impose an appropriate sentence for
    each offence.

[125]

With respect to the first two issues, which are relevant here, the
    trial judge reasoned that, based on the jurys verdicts, they must have
    concluded that (1) the appellant brought the gun to the scene, and (2) the
    shooting happened as per the core of Mr. Henriquezs version. However, he
    went on to make independent findings on each issue, in the event that he was
    incorrect in his conclusions with respect to the findings based on the jurys
    verdicts. In doing so, he carried out a careful analysis of the evidence at
    trial, explaining why he rejected the appellants evidence on each issue, why
    it did not leave him with a reasonable doubt, and why he made the findings
    based on his acceptance of certain aspects of Mr. Henriquezs evidence and
    the other evidence at the trial.

[126]

Contrary to the appellants submission, in
    referring to the core of Mr. Henriquezs evidence, the trial judge did
    not say that his evidence in its entirety was accepted, including that the
    appellant shot Mr. Guzhavin at point blank range, while saying Die,
    motherfucker, die (which could only have been consistent with an intentional
    killing). Indeed, in his analysis, the trial judge pointed to several problems
    with the evidence of Mr. Henriquez, who was a classic
Vetrovec
witness,
    and, in making his findings of fact, he did not accept the entirety of Mr.
Henriquezs account. Rather, the core of
    Mr. Henriquezs evidence was described by the trial judge as follows, at para.
    100:

With regard to the core of the evidence of Mr.
    Henriquez  that he was only peripherally involved in the discussions between
    Mr. Guzhavin and Mr. Hanan; that Mr. Guzhavin never threatened Mr. Hanan with a
    gun in front of Mr. Henriquez; that Mr. Hanan did not grab a gun out of the
    hand of Mr. Guzhavin leading to a struggle for the gun involving Mr. Henriquez;
    that all was calm until he looked up to see Mr. Hanan pointing a gun at Mr.
    Guzhavin and then shooting him; that on seeing Mr. Hanan shooting Mr. Guzhavin,
    Mr. Henriquez turned and started to flee up the driveway; and that he was shot
    twice as he was fleeing, the last shot being in his back which knocked him face
    down on the driveway  I believe Mr. Henriquez.

[127]

The fact that the trial judge said that the jury (and he) accepted
    the core of Mr. Henriquezs evidence does not mean that the trial judge
    concluded that the killing of Mr. Guzhavin was intentional and that he then
    proceeded to sentence the appellant for murder.

[128]

The appellants second argument in support of his submission that
    the sentence was demonstrably unfit is that the trial judge erred in his
    factual finding that he, not Mr. Guzhavin, brought the gun to the shooting. The
    appellant submits that this finding was not open to the trial judge because it is
    inconsistent with the jurys verdict. According to the appellant, when the jury
    found him not guilty of murder, it necessarily rejected Mr. Henriquezs
    evidence. Because Mr. Henriquezs evidence was the only evidence that the
    appellant brought the gun, the jurys rejection of Mr. Henriquezs evidence
    meant that the trial judges determination that the appellant brought the gun
    was contrary to the factual implications of the jurys verdict.

[129]

I would reject this submission. Although the appellant faulted the
    trial judge for allegedly presenting the jury with an all or nothing contest
    between the differing narratives, he takes the same erroneous approach in his
    submission on this point. The appellants all or nothing approach to the
    evidence of Mr. Henriquez is inconsistent both with the trial judges
    instructions to the jury about the assessment of the evidence of Mr. Henriquez
    and other witnesses, and the trial judges findings on sentencing. The fact
    that the jury found the appellant not guilty of murder does not mean that they
    rejected
all
of Mr. Henriquezs evidence. As the trial judge noted, they
    must have accepted the core of his evidence, which the trial judge described,
    and I have set out above.

[130]

For these reasons, I would not give effect to the appellants
    submissions on the sentence appeal. The trial judge did not make the errors the
    appellant asserts, and there is no basis for interfering with the global
    sentence of 15 years, which was, in all the circumstances, a fit sentence.


V.

DISPOSITION

[131]

For these reasons I would dismiss the conviction appeal and, after
    granting leave to appeal the sentence, I would dismiss the sentence appeal.

K.
    van Rensburg J.A.

I
    agree. M. Tulloch J.A.

Nordheimer
    J.A. (dissenting):

[132]

I have read the reasons of my colleague. I do not agree with the
    conclusion that she reaches. In my view, there was a breach of s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
in this case and the charges should be
    stayed. Further, even if a breach of s. 11(b) had not been made out, I would
    find that there was a serious error in the trial judges instructions to the
    jury such that the verdict cannot stand. The matter would have to be remitted
    for a new trial. Given my views on these two issues, I do not reach the
    appellants sentence appeal.

[133]

My colleague has set out the background facts. It is unnecessary for
    me to repeat them, except insofar as I must address the attribution of delay
    and certain aspects of the jury instructions.

A.
Section 11(b)

(i)

Defence delay

[134]

As my colleague has set out, there are two relevant periods at
    issue: (a) the four and one-half month period between January 21 and June 9,
    2016, when the defence refused to set a judicial pre-trial based on incomplete
    and ongoing disclosure; and (b) the period commencing June 3, 2019, when a
    six-week trial date was offered but the defence was not available, with the
    result that the trial did not proceed until October 28, 2019.

[135]

I agree with my colleagues conclusion on the proper treatment of the
    first of these two periods, for the reasons that she has given. The first
    period of delay is properly attributable to the defence arising out of its
    failure to agree to setting a date for the judicial pre-trial because of
    disclosure issues. It is well-established that disclosure does not need to be
    complete in order for the parties to agree to a pre‑trial date. I accept
    that, if the state of the disclosure is such that conducting a judicial
    pre-trial would be futile, then the refusal by the defence to agree to a
    judicial pre-trial date should not be laid at the feet of the defence. However,
    in this case, the defence did not make that point at the time. It is too late
    to now make it when the state of the disclosure cannot be examined or fully
    explained.

[136]

I am also prepared to agree with my colleagues treatment of the
    second period of delay starting on June 3, 2019. Like my colleague, I reject
    the Crowns contention that the entire period of the delay between the two
    trial dates should be attributable to the defence. In so agreeing, however, I
    should not be taken as agreeing with the deduction of the six-week period when
    defence counsel could not proceed because of another trial commitment. In my
    view, that deduction is not consistent with the decision in
R. v. Godin
,
    2009 SCC 26, [2009] 2 S.C.R. 3, where Cromwell J. said, at para. 23:

Scheduling requires
reasonable
availability and
reasonable
cooperation; it does not, for s. 11(
b
)
    purposes, require defence counsel to hold themselves in a state of perpetual
    availability  To hold that the delay clock stops as soon as a single
    available date is offered to the defence and not accepted, in circumstances
where
    the Crown is responsible for the case having to be rescheduled
, is not
    reasonable. [Emphasis added.]

[137]

In this case, defence counsel had another trial set for that
    timeframe involving a client who was in custody. It is the antithesis of
    reasonable cooperation to hold that defence counsel, who is otherwise scheduled
    for trial, must essentially abandon another client in order to take a
    re-scheduled trial date, or face the consequence that the resulting delay will
    be attributed to the defence. However, as the appellant did not take issue with
    the deduction of this six-week period in this case, it is unnecessary to resolve
    the issue, notwithstanding that the Crown took issue with the whole period of
    delay and its proper attribution.

(ii)

Transitional
    exceptional circumstance

[138]

Where I do part company with my colleague is respecting her
    agreement with the trial judge that the transitional exceptional circumstance
    could be relied upon to excuse the delay over the
Jordan
ceiling.
    Unlike my colleague, I find that the trial judge erred in his reliance on that
    principle to excuse the delay in this case.

[139]

The approach to the transitional exceptional circumstance is set out
    in
Jordan
at para. 96. The court said the transitional exceptional
    circumstance will apply when 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.

[140]

There is no basis for applying the transitional exceptional
    circumstance in this case since it is clear that the parties were not relying
    on that pre-existing law. The parties were well aware of the
Jordan
requirements at an early stage of this proceeding. The decision in
Jordan
was released only seven months after the charges were laid in this case and
    four months before the first judicial pre-trial was held. One clear indication
    that the parties were not relying on the pre-
Jordan
law are the
    discussions about
Jordan
, and delay that occurred, during the course of
    scheduling that judicial pre-trial.

[141]

My colleague refers to this problem and quotes a significant portion
    of the trial judges reasons on it. I reproduce just the portion of that
    quotation to which my colleague added emphasis, but without repeating the emphasis:

But awareness of the presumptive ceiling and
    the need for speed are the easiest lessons of
Jordan
.
Jordan
introduced a totally new framework with new concepts and new definitions:
    defence delay, discrete exceptional circumstances, particularly complex cases,
    and transitional exceptional circumstances. The precise meaning of these new
    concepts continues to be refined in court cases more than two years after the
    release of
Jordan
. It is the full understanding of the lessons of
Jordan
that Crown counsel and the courts lagged in their adjustment in this case.

[142]

With respect, the totally new framework with new concepts is a
    vast overstatement of what
Jordan
established. Defence delay,
    exceptional circumstances, and complex cases are not new concepts. Defence
    delay was part of the
R. v. Morin
,

[1992] 1 S.C.R. 771,
    process: see
Morin
, at pp. 790-91 and 793‑94. Exceptional
    circumstances is a concept that has been applied in our law for decades in a
    variety of different contexts. And we are all familiar with determining whether
    individual cases are, or are not, complex. If Crown counsel and the courts
    lagged in their adjustment to the requirements of
Jordan
, that
    simply reflects a continuation of the culture of complacency that was
    criticized in
Jordan
. It does not provide an excuse for the delay.

[143]

It remains the fact that only a very small portion of the delay in
    this case preceded the decision in
Jordan
and most, if not all, of
    that delay has been laid at the feet of the defence. The delay for which the
    Crown and the courts in this case bear responsibility occurred well after the
Jordan
decision. It is improper to take refuge in the fact that this case had a scant
    few months prior to
Jordan
as providing a justification for the delay
    in this case. To do so fundamentally undermines the change in culture that the
    decision in
Jordan
was trying to achieve.

[144]

In terms of the decisions of this court to which the respondent
    referred, my colleague correctly points out that most, or all, of the delay in
R.
    v.

Gordon
,

2017 ONCA 436, 137 O.R. (3d) 776, and
R.
    v. Picard
, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused,
    [2018] S.C.C.A. No. 135, was pre-
Jordan
. That is a fundamental
    distinction between those cases and this one. A fair reading of the decisions
    in those two cases strongly suggests that had that not been the case, the
    results would have been different under a
Jordan
analysis. Indeed,
    Rouleau J.A. made that very point in
Picard
at para. 4.

[145]

In an effort to justify the trial judges application of the transitional
    exceptional circumstance, my colleague then says, at para. 78, that the Crown
    might well have concluded that the trial delay that occurred just prior to the
    estimated
Jordan
ceiling date would qualify as a discrete exceptional
    circumstance or be attributed in part to the defence or that, based on
Gordon
and
Picard
,

there was a transitional exceptional
    circumstance. With respect, we have no knowledge of what the Crown considered
    when it made the decision not to consent to a re-election. What we do know is
    that the trial judge warned the Crown about the s. 11(b) consequences of not
    proceeding with a judge alone trial, both when the request for the Crowns
    consent was made and again, a few days later, when the Crown refused to
    consent. The Crown cannot pretend that the consequences of that decision, in
    terms of s. 11(b), were not crystal clear.

[146]

In the end result, the trial judges conclusion that the parties had
    not had sufficient time to adapt to the lessons of
Jordan
reflects a
    fundamental misunderstanding of the dictates that emanated from that decision.
    As the court said in
Jordan
at para. 81: To be clear, the presence of
    exceptional circumstances
is the only basis
upon which the Crown can
    discharge its burden to justify a delay that exceeds the ceiling (emphasis
    added).

[147]

Consequently, on that ground alone, the delay exceeded the
    presumptive ceiling, and a stay ought to have been granted. There were no
    exceptional circumstances that would justify having this case take longer than
    30 months. It is not an exceptional circumstance to find that the time to
    adapt to the lessons of
Jordan
 was insufficient. If that were to be
    found as an exceptional circumstance, precious few cases would not qualify.
    Indeed, it could be said that we are all still learning the lessons from
Jordan
 some quicker than others it would appear.

[148]

The fact remains that almost two and one-half years had passed since
Jordan
was decided when the Crown made its decision to refuse to
    consent to the re-election. The Crown had ample time to adapt to the new world
    that
Jordan
created. It chose not to do so, notwithstanding the clear
    warning that the trial judge provided about the consequences of its decision.
    To treat that situation as an exceptional circumstance is to remove all
    reasonable meaning from the term.

[149]

In light of my conclusion, I should address the respondents
    submission that a remedy short of a stay should be considered when a s. 11(b)
    breach is found. The Supreme Court of Canada has, in many cases, said that the
    remedy for a s. 11(b) breach is a stay of proceedings. Indeed, in
Jordan
at para. 35, the court referred to it as the one remedial tool. In my view,
    if some other remedy is to become available for a s. 11(b) breach, that
    availability will need to be determined by the Supreme Court of Canada. I refer
    to the discussion of this issue in
R. v. Charity
, 2022 ONCA 226, being
    released concurrently with the reasons in this matter.

[150]

I would allow the appeal and stay the charges.

B.      The jury instructions

[151]

Putting aside the delay issue, there is another serious problem in
    this case and that involves the instructions to the jury regarding how they
    should approach the evidence in the case. My colleague finds that the concerns
    regarding the impugned instructions are assuaged by other sections of the
    instructions. Again, I do not agree.

[152]

There were two diametrically opposing versions of what had taken
    place leading up to the shooting. The appellant said he was threatened by the
    two men, one of whom brandished a handgun during the course of their
    confrontation. The appellant says that he reacted in self-defence, by grabbing
    the gun away from him and shooting his attackers without aiming. Only one of
    the other two men involved gave evidence. He said it was the appellant who
    produced the gun and then shot him and the other man.

[153]

The jury was faced with these two opposing versions of the events.
    Their decision as to whether the charges had been proven beyond a reasonable
    doubt would clearly be determined
if
they believed one version as
    opposed to the other.

[154]

However, that is not the core concern in this case. The crux of the
    issue turns on what would happen if the jury could not decide which version
    they accepted or, alternatively, if some members of the jury accepted one
    version and other members of the jury accepted the other version.

[155]

It is in just this type of circumstance where the instruction in
R.
    v. W.(D.)
,

[1991] 1 S.C.R. 742, becomes of critical importance.
    Its importance arises from its fundamental application to a proper
    understanding of the burden of proof. The members of the jury must understand
    that, if they are unable to decide which version of the events they accept, or
    if there is disagreement on that question, the jury must acquit, because the
    Crown will have failed to prove the charges beyond a reasonable doubt.

[156]

Unfortunately, in this case, the trial judge did not drive home that
    important aspect of the burden of proof. Rather, he set up the question for the
    jury as a stark choice between the two versions. My colleague has set out the
    problematic sections of the instructions, but they bear repeating. For example,
    in describing self-defence, the trial judge told the jury:

The resolution of these issues, I suggest to
    you, is driven in large part by which version you accept. The two versions you
    have heard cannot both be true.

[157]

He repeated this instruction three more times when he discussed the
    issue of the reasonableness of the force that the appellant had used. The trial
    judge said:

The reasonableness of the shooting of Mr.
    Guzhavin by Mr. Hanan is largely dependent on which of the two conflicting
    versions you accept.



Again you may find that the resolution of this
    issue hinges on which version is accepted.



The answer again is largely dependent upon
    which version is accepted.

[158]

It was crucial, when discussing the elements of the offences, and
    the issue of self-defence, for the trial judge to make it clear to the jury that,
    if they could not decide between the two versions of the events, they would
    have to have a reasonable doubt and the appellant would then have to be found
    not guilty. The trial judge did not do this.

[159]

This issue was directly addressed by this court in
R. v. Austin
(2006), 214 C.C.C. (3d) 38 (Ont. C.A.), where Doherty J.A. said, at para. 20:

The trial judges instruction ignored the
    possibility that the jury might not be able to decide which version of the
    events to believe and, therefore, would be unable to make the findings of fact
    described by the trial judge. Recognition of the possibility that a jury may
    not be able to come to a definitive conclusion with respect to the credibility
    of competing versions of the relevant events is integral to a proper application
    of the reasonable doubt standard. This potential middle ground is especially
    important in cases like this one where the accused testifies and presents a
    version of events that is diametrically opposed to that given by the Crown
    witnesses.
The jury must understand that if it cannot decide whose story to
    believe, it must acquit.
[Citation omitted; emphasis added.]

[160]

The respondent contends that the jurys verdict demonstrates that
    they understood there was a middle ground between the two versions where
    neither version was accepted. I do not agree. First, it is, in my view, very
    risky to attempt to reach definitive conclusions as to the reasoning of a jury.
    We have no knowledge of their discussions, and we have no reasons from them.
    What might seem reasonable to us, as outside observers, may or may not bear any
    resemblance to what went on in the jury room.

[161]

Second, it can be argued that the jurys verdict demonstrates that
    they did not understand the second prong of
W.(D.)
, that is, that the
    inability to agree on one version or the other must give rise to a reasonable
    doubt. Indeed, the fact that the jury convicted the appellant of manslaughter,
    as opposed to murder, might well represent what is often referred to as a
    compromise verdict. Such a verdict is not based on a proper application of the
    principles from
W.(D.)
, but rather represents a compromise reached by
    the opposing sides because they are unable to agree on which version of the
    events they accept.

[162]

The respondent also suggests that the concern about the trial
    judges instructions is alleviated because the trial judge had, earlier in his
    charge, told the jury: when you are confronted with two conflicting versions,
    as you are here, you do not approach it asking which version do you prefer. My
    colleague relies on this fact heavily to discount the problems with the
    impugned instructions.

[163]

I accept that jury instructions must be read as a whole. However, I
    believe it is risky to assume that what a jury is told early on in the
    instructions will necessarily resonate with them respecting matters that arise
    later in the instructions. The fact that basic concepts are contained in what I
    respectfully characterize as the boilerplate portion of the instructions will
    not have the same impact as when the trial judge turns to the elements of the
    offence and any defences that arise on the evidence.

[164]

In that regard, the problematic portions of the instructions are
    included at the very point that the jury is being instructed on self-defence,
    which was the key defence in this case. It is at the very point when the jury
    is focused on what they are being told are the key issues that they have to
    decide regarding the question of guilt that the erroneous instructions are
    given. Suggesting that the jury will, at that point, harken back to something
    they were told much earlier, as somehow limiting (if not contradicting) what
    the judge is then saying, is neither realistic nor of much comfort. In any
    event, when concerns arise about a matter as serious as the burden of proof and
    the meaning of reasonable doubt, I do not accept that one can gloss over these
    possible consequences in this fashion.

[165]

I would add that it is also at the point when the trial judge is
    discussing self-defence in his charge that he told the jury that [t]he two
    versions you have heard cannot both be true. This is the same error that this
    court identified in
R. v. T.A.
, 2020 ONCA 783, at para. 31, and which
    led to a new trial in that case.

[166]

Finally, the respondent, and my colleague, both take shelter in the
    failure of defence counsel (not counsel on appeal) to object to the charge.
    While that is a relevant consideration, the failure to object, when the error
    is as serious as it is here, is not fatal to an appeal. As Lamer C.J. said in
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 37, the Court has not lost
    sight of the fact that the jury charge is the responsibility of the trial judge
    and not defence counsel.

[167]

Given this error in the jury instructions, had I not decided that
    there was a s. 11(b) breach that warranted a stay of proceedings, I would
    have set aside the convictions and ordered a new trial.

Conclusion

[168]

I would allow the appeal, set aside the convictions, and order a
    stay of proceedings.

Released: March 21, 2022 M.T.

I.V.B.
    Nordheimer J.A.





[1]

R. v. Charity
, 2022 ONCA 226;
R. v. Campbell
, 2022
    ONCA 223.


