



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tsega, 2019 ONCA 111

DATE: 20190215

DOCKET: C64096

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sam Tsega

Appellant

Jonathan Dawe and Michael Dineen, for the appellant

Amy Alyea, for the respondent

Heard: December 6, 2018

On appeal from the conviction entered by Justice
    Catherine D. Aitken of the Superior Court of Justice on June 30, 2016, and from
    the sentence imposed on April 13, 2017, with reasons reported at 2017 ONSC
    2256.

Hourigan J.A.:

A.

OVERVIEW

[1]

In February 2010, three young men from Toronto, Dylon Barnett,
    Kristopher McLellan, and Kyle Mullen, carried out a home invasion in Barrhaven,
    Ontario. The target of the invasion, Michael Swan, was shot and killed during
    the robbery. The three men, referred to as the Toronto Three by the trial
    judge, were arrested hours after the home invasion. Several months later the
    police arrested the appellant, alleging that he was responsible for directing
    the Toronto Three to Mr. Swans home and supplying them with clothing to wear
    during the robbery.

[2]

The appellant was convicted of manslaughter in connection with Mr.
    Swans death. He appeals his conviction on the grounds that the trial judge
    erred in admitting certain hearsay statements made by Messrs. Mullen and
    McLellan for the truth of their contents and in dismissing a post-conviction
    application pursuant to s. 11(b) of the
Canadian Charter of Rights and
    Freedoms
. In addition, the appellant seeks leave to appeal the sentence
    imposed by the trial judge of nine years, less credit for pre-sentence custody.

[3]

For the reasons I will detail below, I have concluded that the
    manslaughter conviction must be set aside and a new trial ordered. In summary,
    the law regarding the admission of hearsay statements was fundamentally changed
    by the Supreme Court of Canada in
R. v. Bradshaw
, 2017 SCC 35, [2017]
    1 S.C.R. 865, which was released after the trial judges ruling on the impugned
    hearsay statements in the case at bar. Applying
Bradshaw
to the facts
    of this case leads to the inescapable conclusion that the statements should not
    have been admitted for the truth of their contents. Although I am not satisfied
    that the appellants right to be tried within a reasonable time has been
    violated and I ultimately conclude that the trial judges s. 11(b) ruling
    should not be interfered with, I depart from the trial judges reasoning and
    offer what I view to be the correct analytical approach for considering the
    impact of extraordinary remedies on an accuseds s. 11(b) rights

B.

fACTS

[4]

The following brief factual summary will serve to put the issues in this
    appeal into context.

[5]

The appellant was raised in Toronto, where he became friends with Mr.
    Barnett. When he was about 12, he relocated with his family to Barrhaven, a
    community southwest of Ottawa. He maintained contact with Mr. Barnett, who was
    close friends with Mr. McLellan. Through a mutual friend, the appellant was
    also acquainted with Mr. Swan, a well-known marihuana dealer. At the time of
    his death, Mr. Swan was 20 years old and living with two roommates in a rented
    home in Barrhaven.

[6]

During the Christmas holidays of 2009 the appellant visited his father
    in Toronto. While there, he socialized with Mr. Barnett. According to a
    statement made to police by Mr. McLellan, he met with the appellant at Mr.
    Barnetts house and they first discussed robbing Mr. Swan. The appellant stayed
    in Toronto until he went on a ski trip with the Barnett family at some point
    after Christmas. The appellant returned to Toronto with Mr. Barnett early in
    the New Year, before going home to Barrhaven a few days later. Over the next
    six weeks, the appellant and Mr. Barnett exchanged a number of text messages,
    but no evidence was adduced at trial about the content of the messages
    pre-dating February 21, 2010.

[7]

On the evening of February 21, 2010, the appellant and Mr. Barnett
    exchanged a series of text messages. At approximately 4 p.m., the appellant
    texted Mr. Barnett, when you guys leavin? At about 5 p.m., he sent a further
    text to Mr. Barnett stating, kk. Bring everything btw. At approximately 6
    p.m., the Toronto Three began driving to Barrhaven. Along the way they
    exchanged texts with the appellant, including a request for food. The appellant
    arranged to have food delivered to a friends home, where the Toronto Three
    briefly met up with the appellant. At approximately 10:30 pm, the food delivery
    was re-routed to the appellants home, where the Toronto Three and the
    appellant waited for the arrival of their food.

[8]

The Crowns theory at trial, supported by the hearsay statements made by
    Messrs. Mullen and McLellan, was that during the next two hours the appellant provided
    clothing and masks to wear during the robbery and drove with the Toronto Three
    to point out Mr. Swans Barrhaven house, which was obstructed from the road by
    a line of trees.

[9]

At approximately 12:30 a.m., the Toronto Three entered Mr. Swans house.
    Messrs. McLellan and Barnett were armed with handguns and Mr. Mullen was
    carrying a baseball bat. They ordered Mr. Swan, along with his roommate, Tyler
    Tanguay, and his girlfriend, Kaitlyn Scott, to kneel on the floor. The robbers
    demanded to know the location of marihuana, cash, and a gun. Mr. McLellan then
    shot Mr. Swan in the back, fatally wounding him. After searching the house for
    ten or twenty minutes, the robbers left with marihuana, cash, and other items,
    including the victims cell phones.

[10]

After
    the home invasion, between 12:52 and 1:09 a.m., the appellant and Mr. Barnett
    exchanged a series of text messages. In one message, Mr. Barnett asked the
    appellant U do it? and he replied Ya bro its done. U ok? At approximately
    2:00 a.m. the appellant texted Mr. Barnett to ask whether he wanted to play an
    online video game.

[11]

The
    police were able to trace the location of Ms. Scotts cell phone travelling
    toward Toronto. The O.P.P. stopped Mr. McLellans vehicle and found loaded
    handguns, drugs, money, and other items from the robbery. The occupants of the
    vehicle were arrested and taken to Ottawa. In their initial statements to the
    police, neither Mr. McLellan nor Mr. Mullen implicated the appellant in the
    home invasion.

[12]

As
    a result of media coverage of the home invasion, Connor Buchanan, a friend of
    the appellants, learned of Mr. Barnetts arrest. He became concerned about the
    appellants possible involvement in the home invasion because he recalled the
    appellant telling him on the night of the robbery that Mr. Barnett and some
    friends were coming to town. Connor Buchanan decided to meet the appellant with
    his father, Alec Buchanan, to discuss the situation. The appellant admitted to
    them that the Toronto Three had visited him at his residence on the night of
    the robbery. He also told them that the Toronto Three threatened to shoot him if
    he did not give them the guys name and tell them wheres this dealer at.
    Alec Buchanan recalled the appellant telling them the Toronto Three threatened
    him by holding a gun to his head. The appellant said he gave the Toronto Three
    Mr. Swans name and address before they left.

[13]

The
    Buchanans went to the police in late April and reported what the appellant had
    told them. The police began an investigation of the appellant, which included
    wiretap authorizations for his phone, as well as for the Toronto Threes
    jailhouse phone conversations and visits.

[14]

On
    September 9, 2010, the police re-interviewed Messrs. McLellan and Mullen
    separately. During those interviews, the police advised that they knew that the
    appellant had met with the Toronto Three on the evening of the home invasion.
    Mr. McLellan declined to say anything further, but when the officers told Mr.
    Mullen that the appellant was saying that the Toronto Three had threatened him,
    Mr. Mullen vigorously denied the allegation. He told the officers that the
    appellant had given them clothing to wear and agreed with the polices
    suggestion that the appellant had shown them Mr. Swans house.

[15]

On
    November 16, 2010, the police re-interviewed Mr. McLellan. When Mr. McLellan
    was told that the appellant had alleged that he had put a gun to the appellants
    head, Mr. McLellan made a statement implicating the appellant in the robbery
    plot. Mr. McLellan told the police that he met the appellant at Mr. Barnetts
    house over the 2009 Christmas holidays and that the appellant told them that he
    knew a guy that has lots of weed and money and suggested that you guys can
    rob him. He further advised that two months later on February 21, 2010, Mr.
    Barnett contacted him saying, tonights the night. He agreed with an
    officers suggestion that the appellant had shown them Mr. Swans house that
    evening. In addition, Mr. McLellan said that the appellant had given them
    clothes to wear during the robbery.

[16]

At
    his October 2013 trial, Mr. McLellan testified in his own defence. He admitted
    to being the shooter. However, he claimed that the gun had gone off accidently.
    Mr. McLellan implicated the appellant in the robbery plot, but his testimony
    was not entirely consistent in this regard with his November 2010 police statement.

[17]

At
    the appellants trial, the Crown attempted to call Messrs. McLellan and Mullen
    as witnesses. They both refused to testify. The Crown brought an application to
    admit Mr. Mullens September 2010 police statement, along with Mr. McLellans
    November 2010 police statement and October 2013 trial testimony, all for the
    truth of their contents. The trial judge ruled that the police statements could
    be admitted but refused to admit Mr. McLellans trial testimony.

[18]

Following
    the appellants conviction for manslaughter, but before his sentencing, the
    Supreme Court of Canada released its decision in
R. v. Jordan
, 2016
    SCC 27, [2016] 1 S.C.R. 631. The appellant then brought a s. 11(b)
Charter
application, which was dismissed by the trial judge.

C.

ISSUES

[19]

This
    appeal raises four issues:

(1)

Did the
    trial judge err in admitting the hearsay statements?

(2)

If the
    answer to issue 1 is yes, is this an appropriate case for the use of the
    curative proviso in s.
686(b)(iii) of the
Criminal
    Code
, R.S.C., 1985, c. C-46?

(3)

Did the
    trial judge err in dismissing the appellants s. 11(b)
Charter
application?

(4)

Should the
    appellants sentence be reduced?

D.

aNALYSIS

(1)

Hearsay Statements

(a)

Ruling of the Trial Judge

[20]

The trial judge applied the principled approach to hearsay, pursuant
    to
R. v. Khelawon
, 2006 SCC 57, [2006] 2
    S.C.R. 787. Given that both men refused to testify at the appellants trial,
    the trial judge concluded that the necessity criteria of the hearsay test had
    been satisfied:
R. v. Tsega
, 2016 ONSC 3399,
    at para. 3 (the 
Tsega

Admissibility Ruling).
    At issue was whether each statement met the requirement for threshold
    reliability. The trial judge, at para. 9, identified the two avenues for
    indicia of threshold reliability: (1) procedural substitutes, which refer to
    substitutes for contemporaneous cross-examination of the declarant that enable
    the trier of fact to assess the statements truth and accuracy and; (2) substantive
    reliability, which refers to the presence of sufficient substantial guarantees
    of reliability or the inherent trustworthiness of a statement.

[21]

First, the trial judge held that Mr. Mullens September 2010
    statement to the police was admissible. In that statement, Mr. Mullen denied
    that he threatened the appellant and specifically told the officers the
    appellant had given him and his accomplices a couple of sweaters, two pairs of
    gloves, two masks, and a scarf. The trial judge identified the inherent dangers
    in admitting Mr. Mullens statement: the statement was not given under oath
    with the appropriate warnings, the statement was not videotaped, Mr. Mullen was
    not subjected to cross-examination at the time of the statement, and Mr. Mullen
    could not be subjected to cross-examination at the appellants trial, thereby
    impeding the ability to evaluate Mr. Mullens credibility and sincerity:
Tsega
Admissibility Ruling, at para. 46. However, in the trial judges
    opinion, several circumstantial guarantees of reliability supported a finding
    that Mr. Mullens statement passed the test for threshold reliability. In
    particular, the trial judge pointed to the spontaneous and direct nature of the
    statement, the lack of evidence that Mr. Mullen held negative
animus

toward the appellant, the generally inculpatory nature of
    Mr. Mullens statement, and the existence of substantial corroborating evidence:

Tsega
Admissibility Ruling, at paras.
    56-67. As such, Mr. Mullens September 2010 statement was held to be
    admissible.

[22]

Second, the trial judge admitted Mr. McLellans November 2010
    statement, in which Mr. McLellan said that the appellant identified a target
    for the robbery, showed him and his accomplices where Mr. Swan resided, and
    provided them with black hoodies and maybe a toque:
Tsega
Admissibility Ruling, at para. 88. The trial judge identified the
    dangers inherent in admitting the statement: the statement was not made under
    oath nor were the appropriate cautions provided, the statement was not
    videotaped, no cross-examination occurred at the time of the statement, and
    there was no opportunity for defence counsel to cross-examine Mr. McLellan and
    explore problems with his credibility and sincerity:
Tsega

Admissibility Ruling, at para. 91. The trial judge concluded that
    threshold reliability was established, albeit this finding was a close call,
    based on the circumstantial guarantees of the reliability of the statement:
Tsega
Admissibility Ruling, at para. 111. While noting that Mr. McLellans statement
    lacked the spontaneity of Mr. Mullens statement, the trial judge pointed to a
    lack of evidence of negative
animus
toward the appellant, the
    inculpatory nature of portions of the statement, and the presence of
    corroborating evidence in concluding that threshold reliability had been
    established:
Tsega
Admissibility Ruling, at
    paras. 101-108. Although there was an opportunity for collusion between Mr.
    McLellan and Mr. Mullen between September 9 and November 16, the trial judge
    was not convinced that there was actual collusion tainting Mr. McLellans
    evidence:
Tsega
Admissibility Ruling, at para.
    109.

[23]

Third, the trial judge held that Mr. McLellans evidence from his
    own trial was inadmissible. Such evidence included Mr. McLellans description
    of the appellants alleged involvement in the plan to rob Mr. Swan. Despite
    there being procedural substitutes for contemporaneous cross-examination of the
    declarant, the trial judge found there were limitations to the extent that
    these safeguards could support a finding of threshold reliability in the
    context of the appellants trial:
Tsega
Admissibility Ruling, at paras.
    114-116. Further, the format and manner of the cross-examination of Mr.
    McLellan reduced confidence in the accuracy of his statements at trial,
    undermining the statements substantive reliability for the purpose of
    threshold reliability:
Tsega

Admissibility
    Ruling, at paras. 120-121. Therefore, Mr. McLellans trial evidence was not
    admitted.

(b)

Bradshaw

[24]

In
Bradshaw
, the issue for the court was: when and how can a trial judge
    rely on corroborative evidence to conclude that the threshold reliability of a
    hearsay statement is established? The court noted that hearsay dangers can be
    overcome and threshold reliability established by showing that: (1) there are
    adequate substitutes for testing truth and accuracy (procedural reliability),
    or (2) there are sufficient circumstantial or evidentiary guarantees that the
    statement is inherently trustworthy (substantive reliability):
Bradshaw
,
at para. 27.  The court also stated that in rare cases procedural and
    substantive reliability can work in tandem to meet the threshold reliability
    standard:
Bradshaw
,
at para. 32.

[25]

The
    court placed strict limits on the use of corroborative evidence to establish
    threshold reliability. It can only be used if it shows, when considered as a
    whole and in the circumstances of the case, that the
only
likely
    explanation for the hearsay statement is the declarants truthfulness about, or
    the accuracy of, the material aspects of the statement [emphasis added]:
Bradshaw
,
at para. 44. To be clear, the corroborative evidence must go to the
    truthfulness or accuracy of the
material
aspects
of the hearsay
    statement, as the purpose of the corroborative evidence is to mitigate the need
    for cross-examination on the very point for which the hearsay evidence is
    tendered:
Bradshaw
, at para. 45.

[26]

Justice
    Karakatsanis, writing for the majority, stated that in assessing threshold
    reliability, the trial judges preoccupation is whether in-court,
    contemporaneous cross-examination of the hearsay declarant would add anything
    to the trial process:
Bradshaw
, at para. 40. Therefore, to overcome
    the hearsay dangers and establish substantive reliability, corroborative
    evidence must show that the material aspects of the statement are unlikely to
    change under cross-examination:
Bradshaw
, at para. 47. If alternative
    explanations for the statement could have been elicited or probed through
    cross-examination, the hearsay dangers persist and the statement should not be admitted.
    This standard will not be met where the corroborative evidence is equally
    consistent with another explanation. The corroborative evidence must show on a
    balance of probabilities that the only likely explanation for the statement is the
    truth or accuracy of the material aspects of the statement.

[27]

Justice
    Karakatsanis provided, at para. 57, the following four-step framework for determining
    whether corroborative evidence meets the test of threshold reliability:

In sum, to determine whether corroborative evidence is of
    assistance in the substantive reliability inquiry, a trial judge should

1. identify the material aspects of the hearsay statement that
    are tendered for their truth;

2.identify the specific hearsay dangers raised by those aspects
    of the statement in the particular circumstances of the case;

3. based on the circumstances and these dangers, consider
    alternative, even speculative, explanations for the statement; and

4. determine whether, given the circumstances of the case, the
    corroborative evidence led at the
voir dire
rules out these alternative
    explanations such that the only remaining likely explanation for the statement
    is the declarants truthfulness about, or the accuracy of, the material aspects
    of the statement.

[28]

It
    is important to recognize that the Supreme Courts ruling in
Bradshaw
created a much more onerous test for the admission of a hearsay statement than
    existed at the time of the appellants trial. As Chris D.L. Hunt and Micah B.
    Rankin described in their article, 
R. v. Bradshaw
: The principled
    approach to hearsay revisited (2019) 22:1 Intl. J. Evidence & Proof 68,  at
    p. 74:

the majoritys framework creates a far more restrictive
    standard for the admissibility of corroborative evidence. This is reflected in
    the second and third steps of the new framework; namely, the requirement that
    trial judges identify alternative (and even speculative) explanations for the
    hearsay statement and the requirement that the corroborative evidence must show
    the truthfulness of the statement to be the
only likely explanation
.
    As Justice Moldaver observed in dissent, this approach appears to mean that for
    a piece of corroborative evidence to make its way onto the evidentiary scale
    for threshold reliability purposes, it must effectively be independently
    capable of tipping the scale. [Emphasis in original.]

[29]

In
    the next section of my reasons, I consider how that more restrictive standard
    applies to the impugned statements in the case at bar. I note that because the
    trial judge did not have the benefit of the Supreme Courts decision in
Bradshaw
,
    she did not apply this test in her ruling on the admissibility of the hearsay
    statements.

(c)

Application of
Bradshaw

[30]

The
    application of the four-step framework provided by the Supreme Court in
Bradshaw
to the statements of Messrs. McLellan and Mullen makes clear that they should
    not have been admitted for the truth of their contents.

[31]

Turning
    to the first part of the analysis, the material parts of the statements being
    tendered for their truth were: (i) that the appellant had given the Toronto
    Three clothing to wear during the robbery, and (ii) that the appellant had
    driven out with the Toronto Three to Mr. Swans house to point out the location
    of the residence. In addition, in Mr. McLellans statement he told the police
    that the appellant had first proposed the idea of robbing Mr. Swan when they
    met at Mr. Barnetts fathers home over the Christmas holidays.

[32]

The
    second part of the analysis reveals that the primary hearsay danger raised by
    those aspects of the statements is the difficulty in ascertaining the sincerity
    of the claims regarding the appellants alleged involvement in the robbery.

[33]

The
    third part of the analysis invites the court to consider alternative, even
    speculative, explanations for the statements. In the circumstances of this
    case, there are several alternative explanations for both statements.

[34]

With
    respect to Mr. Mullen, there were four potential motives identified by the
    appellants counsel to falsely implicate the appellant in the robbery plot.
    First, the appellant had made an allegation that the Toronto Three had
    threatened him by holding a gun to his head, which implicated them in a further
    crime. Second, the police suggested to Mr. Mullen that the appellants account
    might lead a jury to conclude that the Toronto Three had planned in advance to
    shoot Mr. Swan. Third, the police suggested to Mr. Mullen that the appellant
    was more likely to support Mr. Barnetts version of events and that he was
    going to buddy up with Dylons side and fuck you [Mullen] Fourth, Mr.
    Mullen was upset about the allegation that the appellant had been threatened and
    this gave him an incentive to falsely implicate the appellant out of spite. I
    accept that these are all credible explanations for Mr. Mullens statement.

[35]

With
    respect to Mr. McLellan, the appellants counsel identified three potential
    motives to falsely implicate the appellant in the robbery plot. First, as was
    the case with Mr. Mullen, the appellants statement implicated Mr. McLellan in
    a further crime. Second, the appellant had specifically alleged that it was Mr.
    McLellan who held the gun to his head. This evidence put Mr. McLellan in
    possession of a gun before the shooting. Mr. McLellan, at the time, was denying
    being the shooter, giving him a further motive to discredit the appellant. 
    Third, as the trial judge noted, it was possible the pair had a conversation
    about Mr. Mullens September 2010 police statement. This fact, coupled with a
    police suggestion to Mr. McLellan that the best way to discredit the appellant
    was by supporting Mr. Mullens statement, provided Mr. McLellan with a motive
    to corroborate the account that Mr. Mullen had previously given to police. I
    accept these as valid potential motives for falsely implicating the appellant.

[36]

The
    final part of the analysis requires the court to closely examine the corroborative
    evidence led at the
voir dire

to determine whether it rules out
    these alternative explanations, such that the only remaining likely explanation
    for the statement is the declarants truthfulness about, or the accuracy of,
    the material aspects of the statement.

[37]

The
    appellant submits that the trial judge erred in relying on the statements as
    being mutually corroborative. I agree. It is possible that Messrs. Mullen and
    McLellan discussed Mr. Mullens September 2010 statement to the police before
    Mr. McLellan spoke to the police. In addition, it is clear that material parts
    of the statements were influenced by leading questions and suggestions made by
    the police. As
Bradshaw
makes clear at para. 50, corroborative
    evidence must be trustworthy and this evidence was not.

[38]

The
    trial judge also relied on corroborative evidence that did not implicate the
    appellant. She found support for this approach in
R. v. Khela
, 2009
    SCC 4, [2009] 1 S.C.R. 104, at paras. 39-40, where the court stated that
    confirmatory evidence need not implicate the accused, but should give the court
    comfort that the witness was truthful in relevant aspects of his or her
    account.
Khela
was a case about the reliability of
Vetrovec
witnesses. The approach taken in that context was rejected by the majority in
Bradshaw
for use in the analysis of the admissibility of hearsay statements under the
    principled approach: see
Bradshaw
, at paras. 44-47. Therefore, the
    trial judge erred in relying on any evidence that does not go to the material
    aspects of a hearsay statement.

[39]

The
    Crown concedes that the trial judge erred in this regard but argues that she
    identified four sufficient categories of corroborative evidence to support the
    material aspects of the statements to establish threshold reliability.

[40]

First,
    the Crown relies on the evidence regarding the recovery of the black hoodies
    worn by the Toronto Three at the time of their arrest, including one with an
    Ohio State logo. The appellants sister attended that school at the time.

[41]

Second,
    the Crown relies on evidence that suggests that no threats were made against
    the appellant when the Toronto Three were at his home. Specifically, it points
    to the text messages between the appellant and Mr. Barnett after the home
    invasion that show no sign of concern on the appellants part. The intercepted
    telephone calls between the appellant and his mother wherein the appellant
    distanced himself from the story he told the Buchanans are also cited as
    corroborative. Further, the Crown notes the evidence of the appellants
    brother, who was home at the time the Toronto Three visited. It did not appear
    to him that any threatening took place nor did the appellant tell him about the
    threats.

[42]

Third,
    the Crown points to the admission made by the appellant to the Buchanans that
    he told the Toronto Three where Mr. Swan lived. The Crown submits that in the
    absence of any threats, this admission corroborates the hearsay statements.

[43]

Finally,
    the Crown submits that although the trial judge did not rely on the cell phone
    evidence, it is also corroborative of the statements. That evidence suggested
    that the appellant could have been near Mr. Swans home, rather than at his own
    home, shortly before the home invasion and is inconsistent with the appellants
    story about being threatened.

[44]

I
    accept that the Crown raises a number of pieces of evidence that are supportive
    of the veracity of the material parts of the hearsay statements. The issue is
    whether this evidence rules out the alternative explanations, such that the
    only remaining likely explanation for the statements is the declarants
    truthfulness about the material aspects of them. In short, can we be satisfied,
    based on this evidence, that cross-examination is unnecessary.

[45]

In
    my view, the Crown has not met the test for the admission of the hearsay
    statements as articulated by the Supreme Court in
Bradshaw
. For
    example, the evidence regarding the clothing does not remove alternative scenarios
    regarding its source. In his statement, Mr. Mullen pointed to the appellant as
    the supplier of the masks used in the robbery, while Mr. McLellan testified at
    his trial that he was the one who supplied the masks. Moreover, there is no
    independent evidence to support the theory that the appellant supplied the
    clothing.

[46]

The
    evidence of the communications between the appellant and Mr. Barnett after the
    home invasion could be interpreted as demonstrating a lack of concern on the
    part of the appellant. However, the text messages were exchanged after the home
    invasion when the imminent threat to the appellant had dissipated. The fact
    that the appellants brother did not observe any threatening behaviour could be
    because of his location in the home that evening. Further, the appellant may
    not have told his brother about the threats for a number of reasons, including
    concerns about his familys safety.

[47]

The
    intercepted phone calls capture the appellant discussing his response to police
    inquiries regarding his interactions with the Toronto Three the evening of the
    home invasion. This evidence appears to show the appellant trying to create an
    alternative scenario to the one he told the Buchanans. That could be because,
    as suggested by the Crown, his mother or brother told him that the threatening
    story would not withstand scrutiny. However, it could also be that he was
    looking for an alternative story because when he told the Buchanans about being
    threatened and revealing Mr. Swans name and address, Alec Buchanan told him
    that he could be charged as an accessory to murder.

[48]

The
    admission to the Buchanans that he told the Toronto Three Mr. Swans address is
    supportive of the veracity of the statements only if the story about
    threatening is disbelieved.

[49]

The
    cell phone records are evidence that the appellant was closer to Mr. Swans
    residence than to his own home before the home invasion. However, even those
    records are subject to debate, as the expert evidence at trial made clear that
    cell phones signals do not always bounce off of the nearest cell phone tower
    and tend to identify only a general area where the cell phone might be located.

[50]

In
    summary, looking at the corroborative evidence as a whole, I cannot be
    satisfied on a balance of probabilities that it rules out alternative
    explanations, such that the only remaining likely explanation for the statements
    is Messrs. Mullen and McLellans truthfulness. This is not a situation where
    cross-examination would be of no benefit. Cross-examination could well cast
    doubt on the truthfulness of the statements. Accordingly, I conclude that the
    trial judge erred in admitting the hearsay statements.

(2)

Curative Proviso

[51]

The
    Crown submits that if the trial judge erred in admitting the hearsay
    statements, this court should dismiss the appeal pursuant to the curative
    proviso in s. 686 (b) (iii) of the
Criminal Code
. This argument, which
    is not included in the Crowns factum, may be dealt with summarily.

[52]

In
    my view, the curative proviso has no application in the case at bar. For it to
    be available, the Crown has the onus of establishing, on the admissible evidence,
    that the case against the appellant is overwhelming or that it can be safely
    said that the legal error was harmless because it could have had no impact on
    the verdict:
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at
    paras. 25 and 28.

[53]

The
    hearsay statements were important parts of the Crowns case against the appellant.
    They were the only evidence directly tying him to the planning and execution of
    the home invasion. They cannot be said to be inconsequential. Nor do I find
    that the admissible evidence establishes an overwhelming case against the
    appellant. I conclude, therefore, that there must be an order for a new trial.

(3)

Section 11(b) Application

(a)

Jordan
Analysis

[54]

In
Jordan
, the Supreme Court recognized that timely justice is a hallmark
    of a free and democratic society. The court mandated a new analytical framework
    for applying s. 11(b), motivated by a desire to move from a culture of
    complacency that had led to intolerable delays to a culture of accountability
    that would result in a more efficient justice system. Under the
Jordan
framework, all the players in the criminal justice system, including the
    police, Crown, defence counsel, and courts are required to take responsibility
    for ensuring that accused are brought to trial expeditiously. As the court stated
    at para. 137, real change will require the efforts and coordination of all
    participants in the criminal justice system.

[55]

The
    analytical framework for determining whether delay in a given case has violated
    an accuseds s. 11(b) right to be tried within a reasonable time has been well
    established in the
Jordan
jurisprudence. It was succinctly summarized
    by the Supreme Court in
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659,
    at paras. 20-25: as follows:

[
20
] The new framework established in
Jordan

for analyzing whether an accused persons right to a trial within a
    reasonable time has been breached centres on two presumptive ceilings: 18
    months for cases tried in provincial courts and 30 months for cases tried in
    superior courts (
Jordan
, at para. 46).

[
21
] The first step under this framework
    entails calculating the total delay from the charge to the actual or
    anticipated end of trial (
Jordan
, at para. 60). In this case, an
    information was sworn against Mr. Cody on January 12, 2010, and his trial was
    scheduled to conclude on January 30, 2015. This makes the total delay
    approximately 60.5 months.

[
22
] After the total delay is calculated,
    delay attributable to the defence must be subtracted (
Jordan
, at
    para. 60). The result, or net delay, must then be compared to the applicable
    presumptive ceiling. The analysis then depends upon whether the remaining
    delay  that is, the delay which was not caused by the defence  is
above
or
below
the presumptive ceiling (
Jordan
, at para. 67 (emphasis in
    original)).

[
23
] If the net delay falls below the
    ceiling,

then the onus is on the defence to
    show that the delay is unreasonable. To do so, the defence must establish that
    (1) it took meaningful steps that demonstrate a sustained effort to expedite
    the proceedings,
and
(2) the case
    took markedly longer than it reasonably should have. [Emphasis in original.] (
Jordan
, at para. 48)

[
24
] If the net delay exceeds the ceiling,

then the delay is presumptively
    unreasonable. To rebut this presumption, the Crown must establish the presence
    of exceptional circumstances. If it cannot, the delay is unreasonable and a
    stay will follow. (
Jordan
, at para.
    47)

[
25
] Where charges pre-date
Jordan

and the delay remains presumptively unreasonable after deducting defence
    delay and accounting for and considering exceptional circumstances, the Crown
    may nevertheless demonstrate that the transitional exceptional circumstance
    justifies the delay (
Jordan
, at paras. 95-96).

(b)

Ruling of the Trial Judge

[56]

The
    appellant was charged on September 21, 2010 and was convicted on June 30, 2016.
    The original charge was manslaughter, but it was later upgraded to first degree
    murder. In February 2012, the appellant was committed to stand trial on a
    charge of second degree murder after the preliminary inquiry judge rejected the
    Crowns argument that he should be committed for trial on a charge of first degree
    murder. His trial was scheduled to begin on February 19, 2013.

[57]

The
    Crown filed a
certiorari
application following the committal on second
    degree murder. The hearing of that application was delayed pending the outcome
    of the Crowns appeal of a
certiorari
review to this court seeking to
    have the Toronto Three indicted for first degree murder. The Crown appeal in
    that case was successful and the case was remitted to the preliminarily inquiry
    judge with a direction that Mr. McLellan be committed on this charge and that
    the preliminary inquiry judge reconsider whether there was sufficient evidence
    to commit Messrs. Mullen and Barnett on first degree murder charges.

[58]

In
    June 2013, the Crowns
certiorari

application regarding the
    appellants committal was heard and his case was remitted to the preliminary
    inquiry judge to consider whether the appellant could be liable for first degree
    murder through forcible confinement. In September 2013, the appellant was
    committed to stand trial on a charge of first degree murder.

[59]

The
    appellant then applied for
certiorari
of this committal. The Crown
    brought a motion to remove counsel for the appellant based on an alleged
    conflict of interest. That motion was ultimately resolved and the appellants
certiorari

application was heard in November 2014 and dismissed in March 2015. The
    appellant filed a notice of appeal in this court.  In February 2016, the Crown
    agreed to prefer a new indictment on a charge of second degree murder and consented
    to re-election to trial by judge alone. The appellant then abandoned his appeal
    as moot.

[60]

The
    trial judge calculated the period between charge and conviction as being 69.3
    months:
R. v. Tsega
, 2017 ONSC 3090, at para. 4 (the 
Tsega

Charter
Application). She focused her analysis on two periods of
    time. The first period was from the first committal decision until the decision
    to commit on first degree murder. The second period was when the defence
    brought
certiorari

proceedings following the appellants
    subsequent committal on first degree murder, and then appealed the
certiorari

decision:
Tsega

Charter
Application, at para. 25. The
    trial judge concluded that these periods of appellate delay should not be
    included in the calculation of delay. This reduced the period of delay to 22.4
    months, which is below the 30 month
Jordan
ceiling:
Tsega

Charter
Application, at paras. 43-44. On that basis, she dismissed the s. 11(b)
    application:
Tsega

Charter
Application, at para 46.

[61]

Notwithstanding
    her ruling, the trial judge went on to conduct a
Jordan
analysis. She
    deducted 8 months for defence delay:
Tsega
Charter
Application,
    at para. 58. The trial judge then considered the issue of discrete, exceptional
    events and deducted 26.25 months, consisting of 1 month due to events
    impacting on the trial judges availability, 4.5 months at the preliminary
    inquiry due to the refusal of witnesses to testify, 0.5 months at trial due to
    the refusal of witnesses to testify, and 20.25 months due to the defence
certiorari

application, and the appeal therefrom:
Tsega

Charter
Application, at para. 73. Those deductions left a balance of 35 months. The
    trial judge found that the case was exceptionally complex from start to finish,
    both in terms of the evidence collected and the legal issues involved, and
    deducted another 18 months:
Tsega

Charter
Application,
    at para. 85. Finally, the trial judge found that even if the total delay was
    more than 30 months, she would have found, applying the transitional
    provisions, that the delay was not unreasonable. The Crown satisfied her that
    the time the case took was justified based on the parties reasonable reliance
    on the law as it previously existed:
Tsega

Charter
Application, at para. 89.

(c)

Post-
Jordan
Jurisprudence and Extraordinary Remedies

[62]

Jordan
did not consider the impact of extraordinary remedies and interlocutory appeals
    from such orders on the determination of whether an accuseds s. 11(b) rights
    have been violated. The post-
Jordan
jurisprudence also offers no clear
    answers. Below, I will consider some of that case law before turning to what I
    consider to be the correct approach.

(i)

Crown applications for extraordinary remedies

[63]

The
    most authoritative commentary on this issue in the post-
Jordan
jurisprudence is this courts decision in
R. v. Manasseri
, 2016 ONCA
    703, 132 O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. No. 513. In
    that case,
George Kenny was
    discharged on assault and manslaughter charges: at para. 272. The Crown moved
    to quash the discharge, but its
certiorari
application was dismissed. A Crown appeal of the
certiorari
decision was allowed and the matter was
    remitted to a preliminary inquiry judge who committed Mr. Kenny on the
    manslaughter charge. Watt J.A. concluded that whether the period encompassed
    by the motion for
certiorari

and related appeals is deducted or remains
    included makes no difference to the location of these proceedings given that Mr.
    Kennys s. 11(b)

Charter
rights had been infringed regardless:

Manasseri
, at para. 336.

[64]

The respondent relies on the
obiter

statement of Watt J.A., wherein he commented that it would seem
    incongruous to treat the time taken in pursuit of extraordinary remedies
    differently than that taken in appeals from convictions, acquittals or stays of
    proceedings as

Potvin
mandates:
Manasseri
, at para. 339. This interpretation of
Manasseri
would suggest that delay due to the Crown
certiorari

applications should be deducted from the total delay. The
    appellant, distinguishes the case at bar from
Manasseri
, noting that in that case Mr
.
Kenny

had originally
    been discharged on all counts and that this discharge had been upheld on the
    Crowns original
certiorari

review. In
    contrast, in the case at bar,

the appellant was always a person charged
    with an offence.

[65]

Another recent case dealing with the impact on s. 11(b) of a Crown
certiorari

motion is
Les Industries Garanties limit
é
e
    c. R.
,
2017 QCCS 1504. In
    that case the motion was eventually granted. The applicant argued that delay
    associated with the
certiorari

motion
    should not be deducted from the total delay on the basis that judicial review
    of a committal decision constitutes unilateral state action that may control
    whether or not charges are withdrawn or re-laid:
Les Industries
    Garanties
, at para. 22, citing
R. v. Milani
, 2014 ONCA 536, 120 O.R. (3d) 641, leave to appeal refused, [2014]
    S.C.C.A. No. 426. Further, the applicant suggested that the Crown should have
    preferred an indictment instead of seeking judicial review. Both of these
    arguments were rejected and the court relied on

R. v. Potvin
,
[1993] 2 S.C.R. 880 and

Manasseri
to hold that delay associated with the
certiorari

application does not form part of the total delay for s.
    11(b) purposes:
Les Industries Garanties
, at
    paras. 25-27

[66]

In a recent Ontario case the court examined the merits of an
    application for extraordinary remedies to consider if it constituted an abuse
    of prosecutorial discretion. In
R. v. Patrois
,
    2018 ONSC 934, 404 C.R.R. (2d) 360, the defence objected to the
    characterization of the Crowns
certiorari

application
    and appeal of the decision refusing to grant
certiorari

as
    appellate delay. In discussing this issue, the decision of the trial judge in
    the case at bar was referenced and followed:
Patrois
, at paras. 41-45. In
Patrois
, the trial judge found the Crown had valid
    reasons to apply for
certiorari
. Therefore, the decision to proceed with the

certiorari

application
    was held not to be an abuse of prosecutorial discretion:
Patrois
, at para. 50. The delay associated with
    the application and appeal was held to constitute appellate delay that did not
    count as part of the total delay for the

Jordan
s. 11(b) analysis:
Patrois
, at para. 57.

[67]

In
    contrast to these decisions, in two other recent cases, courts found that delay
    due to
Crown
certiorari

applications should be included in the calculation of total delay
    for s. 11(b) purposes.

[68]

In
R. v. Singh
, 2018 QCCM 10, the
    Crown brought a

certiorari
motion and
    the court found that the qualification of the time spent on an extraordinary
    remedy depends on the facts of each case and that courts cannot ignore a
    defendants s. 11(b) rights just because a
certiorari
motion has been
    filed:
Singh
, at paras. 96-97. Further, even
    when it is a defendant that brings such a remedy, the prosecution is not
    relieved of their obligation to bring the case to trial within a reasonable
    period:

Singh
, at para. 98. Boutros
    J.M.C. distinguished
Les Industries Garanties
and
Manasseri
,
on
    the basis that in those cases the accused had been discharged and had no
    outstanding charges and could not benefit from s. 11(b):
Singh
, at paras. 108-109. However, in this case
,
Mr. Singh
    remained charged and the trial at first instance was merely suspended. As such,
    when a person remains charged, his or her s. 11(b)
Charter

rights remain in full force:
Singh
,
    at para. 110. Further, during the
certiorari
proceedings the prosecution failed to avail itself of the tools it could have
    used to move the case along and ensure that Mr. Singhs s. 11(b) rights were
    not violated. The court declined to deduct any delays that the prosecution
    could have mitigated from the total delay and concluded that Mr. Singhs s.
    11(b) rights were violated.

[69]

Similarly, in
R. v. Mansour
,
[2018] O.J. No. 6421, the court held that
certiorari
proceedings brought by the Crown were to be included in the
    calculation of the
Jordan
delay, as the
    applicant, Mr. Mansour, remained charged throughout the proceedings and is
    entitled to s. 11(b) protections: at para. 29.

(ii)

Defence applications for extraordinary remedies

[70]

On
    the issue of defence applications for extraordinary remedies, the jurisprudence
    is also split.
In
R. v. Brezden and Mulligan
, 2017 ONSC 6376, Leitch J. concluded that delay associated with
    defence
certiorari
proceedings

should not be deducted from the
Jordan
delay calculation because the application was made on legitimate
    grounds to make full answer and defence and was not designed to cause further
    delay: at paras. 52-55. The court also concluded that a defence
certiorari

application does not qualify as an exceptional
    circumstance or a discrete exceptional event:
Brezden
, at para. 57. At para. 58, Leitch J. explicitly stated that she did
    not find
Tsega
persuasive for multiple
    reasons and suggested that the decision is in conflict with the underlying
    principles of
Jordan
.

[71]

In
R. v. Richards
, 2016 ONSC 6372,
    it was also held that the delay due to an unsuccessful defence
certiorari

application should not be counted against the defence.
    Salmers J. was satisfied that the
certiorari
application in this case was legitimately undertaken to respond to the charges.
    As it is the accuseds right to make a full answer and defence, the

certiorari
application was a legitimate step in responding to the charges.
    Therefore, the time required for the application does not constitute defence
    delay:
Richards
, at para. 15. For the same
    reason, the delay associated with the
certiorari

application should not be considered an exceptional circumstance:
Richards
, at paras. 28-29.

[72]

In contrast to the decisions in
Brezden
and
Richards
, in
R. v.
    Jansen
,
2017 ONSC 2954,
    appeal to Ont. C.A. filed, C64827, the court deducted the delay caused by the
    defence
certiorari

application from the
    total delay on the basis that the application was withdrawn for lack of legal
    aid and the grounds of the application were never argued: at para. 53. The
    court was unable to determine the legitimacy of the application, a factor in
    determining whether the delay was attributable to the defence. The court
    reasoned that the absence of this evidence suggested that the application was
    frivolous:
Jansen
, at para. 53. It concluded
    that the delays associated with the
certiorari

application could be attributed to the defence either as defence
    delay or as an exceptional circumstance:
Jansen
, at para. 76.

[73]

The court reached a similar result in
R. v. Codina
, 2017 ONSC 4886, appeal to Ont. C.A. filed, C65015, where three
    meritless
certiorari
applications by the accused were used as evidence
    of the accuseds lack of effort to expedite the proceedings. The reasons of
    this decision imply that the delays associated with meritless applications were
    attributable to defence caused delay:
Codina
, at
    paras. 102, 109, 112-113.

[74]

Finally, in
Ontario (Superintendent of Financial
    Services) v. Dies
, 2018 ONCJ 641, the appellant had
    previously brought a motion to quash the information, which was later
    characterized as frivolous and meritless: at para. 30. Therefore, the court
    reasoned that the delay associated with the
certiorari

motion should be deducted as defence delay, given that the motion
    had no foundation in fact or law:
Dies
, at
    paras. 88-89. Alternatively, even if the defence motion to quash was not viewed
    as meritless, the time associated with the motion could be deducted as a
    discrete event due to the inaccurate time estimates for trial provided by the
    parties:
Dies
, at para. 90.

(d)

The Correct Approach to Extraordinary Remedies in the
Jordan
Analysis

[75]

In
    cases where the accused does not remain charged with a crime during the
    relevant period, it follows from the plain wording of s. 11(b) that the
    constitutional right to be tried within a reasonable time is not operative.
    That is not the situation in the case at bar. The appellant remained subject to
    a criminal charge throughout the entire period.

[76]

As
    noted above, the trial judge excluded what she termed appellate delay from
    the
Jordan
analysis. I consider that to be the wrong analytical
    approach. By automatically excluding delays occasioned by the pursuit of
    extraordinary remedies and appeals therefrom, courts are not fulfilling their
Jordan
imposed obligation of ensuring that all the parties in a case are acting
    responsibly to ensure timely access to justice. For example, a situation could
    arise where the pursuit of extraordinary remedies by the Crown could be
    considered frivolous or found to be undertaken in bad faith. The accused must
    have an ability to challenge those actions and seek an effective remedy where they
    violate his or her s. 11(b) rights.

[77]

Similarly,
    it cannot be the case that the time taken for extraordinary remedies and
    appeals therefrom must, without exception, be included in the delay calculation
    under
Jordan
. If that were the case, the Crowns ability to bring an
    application for extraordinary remedies would be effectively nullified. Given
    the resource constraints in our criminal justice system, it would be too risky
    for the Crown to seek such remedies because in so doing, they would invariably
    run the risk of exceeding the
Jordan
ceiling. In addition, defence
    counsel would obtain a tactical advantage that would lead to applications for
    extraordinary remedies and appeals therefrom being undertaken as a matter of course.
    Unless the Crown could prove that the defence engaged in a deliberate and
    calculated tactic employed to delay the trial, the defence could seek
    extraordinary remedies with impunity and make it very difficult to meet the
Jordan
timelines. Such a result is obviously contrary to what
Jordan
was
    designed to achieve.

[78]

Thus,
    if the time spent seeking extraordinary remedies should not be automatically
    excluded from or included in the
Jordan
delay calculation, there must be
    some method of evaluating whether these periods should be included in a given
    case. In
Jordan
, at para. 69, the court carved out an exception for
    exceptional circumstances that lie outside the Crowns control, in the sense
    that (1) they are reasonably unforeseen
or
reasonably unavoidable,
and
(2) Crown counsel cannot reasonably remedy the delays emanating from those
    circumstances once they arise (emphasis in original). The court went on to
    state that, the determination of whether circumstances are exceptional will
    depend on the trial judges good sense and experience. The list is not closed.
    However, in general, exceptional circumstances fall under two categories:
    discrete events and particularly complex cases:
Jordan
, at para. 71.

[79]

In
    my view, in a case where the Crown has brought a
certiorari
application and/or appealed from a decision granting or refusing
certiorari
resulting in net delay that exceeds the
Jordan
ceiling, it should be
    open to the Crown to argue that such delay constitutes a discrete event. In
    reaching that conclusion, I recognize that such cases do not fit neatly within
    the examples of discrete events provided by the court in
Jordan
and
    subsequent jurisprudence. It could also be said that an application for
    extraordinary remedies is not outside the control of the Crown as it could always
    simply decline to bring the application.

[80]

I
    believe that is too narrow an approach to discrete events. A Crown has an
    obligation to take such steps as required to fulfill his or her duties in the
    prosecution of a case, the same way defence counsel must take all reasonable
    steps to make full answer and defence on behalf of his or her client. Where the
    Crown has a reasonable basis for seeking such remedies, it should not be
    automatically forced to abandon its obligations for fear of a s. 11(b)
    application. In that sense, an application for extraordinary remedies is not
    within the control of the Crown; rather it is something that arises on occasion
    in the circumstances of a given case and must be undertaken in order for a
    Crown to fulfill his or her professional obligations.

[81]

It
    must also be recognized that the Supreme Court did not consider the impact of
    extraordinary remedies on the
Jordan
framework and that in providing a
    carve out for exceptional circumstances the court explicitly chose to grant
    flexibility for future courts in the application of the framework. Moreover,
    the use of the discrete event exception in this manner is consistent with the
    public policy imperatives animating the
Jordan
decision. It ensures
    that the parties are acting in a manner that respects the right of the accused
    to be tried within a reasonable timeframe.

[82]

The
    next issue is what test should be employed by an application judge in
    considering whether the delay occasioned by the Crown in pursuit of
    extraordinary remedies and appeals therefrom fits within the definition of a
    discrete event.  In my view, the best approach is to mirror the analysis
    undertaken when examining defence delay. The application judges role in that
    analysis is not to second-guess the defences decision to pursue actions
    designed to make full answer and defence. Rather, the application judge shall
    intervene only where the defence is not fulfilling its
Jordan
imposed
    obligations because it is engaging in deliberate and calculated tactics aimed
    at causing delay:
Jordan
, at paras. 63-65. Similarly, in determining
    whether delay caused by a Crown application should be excluded from the delay
    calculation, the reviewing judge must recognize the Crowns discretion to take
    such steps and limit the analysis to a consideration of whether the Crowns
    actions were frivolous, undertaken in bad faith, or executed in a dilatory
    manner. A frivolous application is one which has no arguable basis. Again, by
    conducting the analysis on this basis, the court is fulfilling its
Jordan
imposed obligation of ensuring that all justice participants are acting
    responsibly and ensuring that the accuseds right to be tried within a
    reasonable time is respected.

[83]

With
    regard to defence applications, where they are frivolous or made in bad faith,
    they will generally constitute defence delay. Where they are brought in good
    faith, they constitute an exceptional circumstance because they would be
    outside of the control of the Crown, unless in opposing such an application or
    an appeal therefrom the Crown is acting in bad faith, taking a frivolous
    position, or responding in a dilatory manner.

(e)

Application to the case at bar

[84]

The
    appellant submits that the Crown should have proceeded with a trial for second
    degree murder from the outset and had it done so, three years would not have
    been wasted pursuing a frivolous argument.

[85]

The
    Crowns theory supporting its submission that the appellant should be committed
    on first degree murder was that he could be liable for constructive first
    degree murder on the basis of forcible confinement.  It relied on s. 231(5) of
    the
Criminal Code
, which elevates murder to first degree murder if the
    death is caused by the accused while committing or attempting to commit any
    of a series of listed offences, including forcible confinement. The Crown
    sought to combine that section with s. 21(2), which defines parties to an
    offence on the basis of common intention to carry out an unlawful purpose and
    to assist each other therein. In that regard, the Crown relied on
R. v.
    Ceballo
, 2007 ONCA 715, where this court observed at para. 2 that it is an
    open question of law whether ss. 21(2) and 231(5) could be combined as a basis
    for first degree murder committed in the course of a robbery and forcible
    confinement. The specific argument advanced in the case at bar was that there
    was evidence available for the trier of fact to conclude that the appellant was
    a party to the forcible confinement of Mr. Swan, that the confinement was
    causally and temporally linked to the murder, and that the appellant was the
    substantial cause of Mr. Swans death.

[86]

The
    appellant counters that binding jurisprudence foreclosed this argument,
    including
R. v. Harbottle
, [1993] 3 S.C.R. 306. In that case Cory J., writing
    for the court, found that in interpreting what is now s. 231(5), a restrictive
    test of substantial causation should be applied, which requires that the
    accused play a very active role  usually a physical role  in the killing:
Harbottle
,
    at p. 324.

[87]

In
    addition, the appellant submits that the release of
R. v. Ferrari
,
    2012 ONCA 399, 287 C.C.C. (3d) 503, made it very clear that the argument could
    not succeed. In that case, Rosenberg J.A. writing for this court considered the
    interaction between ss. 21(2) and 231(5) and stated, at paras. 68-69,:

[68]

Thus, despite this courts decision in
Richardson
, it is my
    view that the question of liability for first degree murder under s. 231(5)
    based upon s. 21(2) is an open one. That said, however, I am satisfied that the
    two provisions can be combined. While liability for first degree murder under
    s. 231(5) is premised on active participation in the murder, that liability
    flows from the participants acts not any additional mental element. Provided
    the participants conduct was a substantial cause of the death and the other
    elements of s. 231(5) are made out including liability for murder and the
    underlying crime, such as forcible confinement, the accused can be found guilty
    of first degree murder.

[
69
]

It is true, as this court pointed out in
Jackson
,
    that an accused can be convicted of murder under s. 21(2), even though he did
    not participate in the act which caused death. In such a case, he could not be
    convicted of first degree murder under s. 231(5), not because the underlying
    liability for murder was premised on s. 21(2), but because the Crown was unable
    to prove that the partys participation was a substantial cause of the death of
    the victim.

[88]

In
    the present case, I accept that the appellant had the better argument in regard
    to his potential liability for first degree murder. However, the issue is not
    who had the better argument, but whether the Crowns position was frivolous.

[89]

At
    the time of the Crowns initial
certiorari
application,
Ceballo
and
Ferrari

left the door open for the combination of ss. 21(2)
    and 231(5) as a basis of first degree murder. As this court stated in
Ceballo
,
it was an open question whether ss. 21(2) and 231(5) could be combined as a
    basis for first degree murder. That question was answered in the affirmative in
Ferrari
, with the court finding that the sections could be potentially
    combined depending on the circumstances of the alleged involvement in the
    killing.

[90]

The
    weakest part of the Crowns argument was the degree of the appellants involvement
    in the killing of Mr. Swan. He certainly did not play a physical role as
    contemplated in
Harbottle
. However, it must be remembered that
Harbottle
did not mandate a hard and fast rule that an accused must play a physical role
    in the killing.

[91]

While
    not a strong submission, I am satisfied that it was arguable and not frivolous
    to suggest that the appellant could be liable for constructive first-degree
    murder. It was, after all, an argument that found favour with the judge
    reviewing the initial preliminary inquiry judges decision, the judge on the
    second preliminary inquiry, and the judge reviewing a subsequent defence
certiorari

application. There is also no suggestion that the Crown was acting in bad
    faith or that it was dilatory in proceeding with its application for
certiorari
.

[92]

With
    respect to the defence
certiorari
proceeding and appeals, again the
    Crown did not take a frivolous position on the merits. There is also no
    suggestion that the Crown acted in bad faith in opposing the appeals or was
    dilatory in responding to them. To the contrary, the Crown acted responsibly
    and with due regard to the appellants constitutional rights in ultimately
    proceeding on second degree murder.

[93]

Consequently,
    I conclude that the time taken for the Crowns application and the time taken
    for the defence application and abandoned appeal are discrete events totalling
    46.9 months. This reduces the total period of delay to 22.4 months, well below
    the 30 month
Jordan
ceiling. In addition, I agree with the trial
    judges conclusion that a further six month deduction should be made to reflect
    events impacting on the trial judges availability, along with time lost at the
    preliminary inquiry and at trial due to the refusal of witnesses to testify. On
    this basis, I would dismiss the appeal of the trial judges s. 11(b) ruling.

[94]

In
    the alternative, I agree with and adopt the trial judges analysis of the
    application of the transitional provisions.
The
time this case took was justified based on
    the parties reasonable reliance on the law as it previously existed.
This
    was a case with challenging legal issues, no evidence of prejudice, a limited
    impact on the appellants liberty interests, and significant societal interest
    in seeing the accused, who was charged with a very serious offence, being brought
    to justice. Therefore, I would also dismiss the appeal of the trial judges s.
    11(b) ruling on the basis of the transitional provisions under
Jordan
.

(4)

Sentence Appeal

[95]

Given
    my finding that a new trial is required, it is unnecessary to consider the
    sentence appeal.

E.

Disposition

[96]

In
    the result, I would order a new trial on the ground that the trial judge erred
    in admitting the hearsay statements in issue. I would dismiss the appeal of the
    trial judges s. 11(b) ruling.

Released: C.W.H. February 15, 2019

C.W. Hourigan J.A.

I agree. G. Pardu J.A.

I agree. Harvison Young J.A.


