



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Nugent, 2018 ONCA 1014

DATE: 20181211

DOCKET: M49402

Benotto J.A. (In Chambers)

BETWEEN

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

Moving Party

and

Andrew Nugent, Richard Guillemette and Tyler
    Buckingham

Responding Parties

Daniel Kleiman and Indira Stewart, for the moving party

Scott K. Fenton, Lynda E. Morgan, Jeremy Warning, and
    Richard Stephenson, for the responding parties

Heard: October 4, 2018

REASONS FOR DECISION

[1]

On June 5, 2015, a worker at the Detour Lake Mine
    was poisoned by cyanide while on the job. He died that day. Several criminal
    and regulatory charges were brought against the owner of the mine and the
    supervisors on site. The prosecutions were complex. With the assistance of the
    case management judge, the criminal charges were resolved, and it was agreed
    that some of the regulatory charges would proceed to trial. The Ontario Court
    of Justice stayed the regulatory charges pursuant to s. 11(b) of the
Charter
because the delay exceeded the presumptive ceiling. The time from the date
    the information was sworn to the anticipated end of trial was 21 months. The
    application judge added two months for judicial deliberation, for a total of 23
    months.

[2]

The Superior Court of Justice dismissed the appeal.
    The Crown now seeks leave to appeal to this court.

FACTS

[3]

Detour Lake Mine is an open-pit gold mine north-east
    of Cochrane, Ontario. It is owned and operated by Detour Gold Corporation
    (DGC). The mine uses an intensive cyanide reactor (the reactor) to leach
    ore from mined materials.

[4]

The respondents were employed by DGC at the mine.
    Nugent was the acting process plant manager, Buckingham was a supervisor,
    Guillemette was the health and safety manager.

[5]

Denis Millette  a 52-year-old worker  was an
    experienced millwright. He had been working for DGC for just three months when
    he was called to replace a leaking expansion joint on a pump in the reactor. He
    was not told about the potential for exposure to cyanide or the protections
    required.

[6]

For over an hour Millette knelt on the floor
    covered in cyanide wearing regular overalls which absorbed the solution. When
    his lips turned white and he began to shake, members of an emergency response
    team suspected he was having a cardiac incident. His wet clothing was not
    removed. By the time Ornge emergency services arrived, he had stopped breathing
    and could not be resuscitated. The cause of death was cyanide intoxication via
    skin absorption.

[7]

Cyanide poisoning can be treated with an intravenous
    antidote and oxygen provided they are administered immediately. Neither a
    cyanide kit, nor emergency oxygen were available at the plant.

THE CHARGES

[8]

On April 15 and May 3, 2016, following an
    investigation, DGC, Nugent and Michael Okros (the operator of the reactor) were
    charged with criminal negligence causing death.

[9]

On May 26, 2016, DCG and the respondents, Nugent,
    Buckingham and Guillemette, were charged under the
Occupational Health and
    Safety Act
, R.S.O. 1990, c.0.1 (
OHSA
)
.
DCG was charged with 15 counts. The
    respondents were each charged with the following two offences:

1.

Failing to
    ensure that a millwright who was required to work in the in-line leach reactor
    area of the mill used or wore such personal protective equipment, clothing and
    devices as were necessary to protect him from the hazard of exposure to sodium
    cyanide, contrary to s. 27(1)(a)) of
OHSA
.

2.

Failing to take
    the reasonable precaution of providing information, instruction and/or
    supervision to Denis Millette sufficient to protect him from the hazard of
    working with and around sodium cyanide solution, contrary to s. 27(2)(c) of
OHSA
.

THE PROSECUTION

[10]

This case involved two concurrent prosecutions, two
    prosecuting Crown lawyers, multiple co-accused, voluminous disclosure and
    expert evidence.

[11]

The first appearance for the
OHSA
charges
    was June 23, 2016 in Cochrane. At the Crowns request, the charges were linked
    to the criminal charges and the joint appearance was set for July 26, 2016. The
    Supreme Courts decision in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631
was released on July 8,
    2016, between the two appearances.

[12]

The disclosure involved six large binders and a
    hard drive containing thousands of pages of documents. On November 22, 2016, a
    judicial pre-trial conference (JPT) was set for February 22, 2017 with a
    return date of March 21, 2017. Resolution discussions were ongoing so the JPT
    was continued two days later on March 23, 2017 with another return date of
    April 18, 2017 and a further continuing JPT on April 21, 2017.

[13]

The April 21 date did not proceed because on April
    18 counsel advised the case management judge that resolution discussions were
    at an advanced stage and the defence counsel need time to confirm their
    instructions. All parties agreed to an adjournment to May 16, 2017. On May 16,
    2017, the parties were close to resolving matters so, on consent, the matter
    was adjourned to June 9, 2017. On May 25, 2017, counsel for the respondent
    Buckingham wrote to the
OHSA
Crown about trial management issues. The
    Crown responded on June 8, 2017, the day before the JPT.

[14]

On June 9, 2017, with the assistance of the case management
    judge the criminal charges were resolved. It was agreed that DGC would plead
    guilty to criminal negligence causing death and the
OHSA
charges against
    the corporation would be withdrawn. The criminal charges against Nugent and Okros
    would also be withdrawn.

[15]

The
OHSA
charges against the respondents
    were not resolved on June 9. The case management judge commented that the
    respondents needed time to review the Crown witness list and offered to meet
    counsel in Toronto in order to assist discussions. In the meantime,
    arrangements were made to schedule a four-week trial. The first date offered by
    the court was January 8, 2018. Counsel for the respondent, Guillemette, was
    unavailable during the weeks of January 8 or 22, 2018. The trial was scheduled
    to begin on January 29, 2018, the first date that all defence counsel were
    available. A continuing JPT was scheduled for October 25, 2017.

[16]

On August 30, 2017, DGC entered a guilty plea to
    one count of criminal negligence causing death. DGC was fined $1.4 million and ordered
    to pay a Victim Fine Surcharge of $420,000 and restitution of $806,333. The
    criminal charges against Nugent and Okros were withdrawn as were the regulatory
    charges against DGC. The respondents counsel then brought an 11(b) application
    which was set for October 6, 2017. Consequently, the JPT did not proceed on
    October 25.

OCJ DECISION

[17]

The time from the swearing of the information to the estimated end of
    trial was 21 months. This was 3 months over the presumptive ceiling. The
    application judge increased the time over the ceiling by adding two months for
    judicial deliberation bringing the total time to 23 months. The Crown did not
    allege defence delay so the total delay was the same as net delay. The
    application judge found the net delay of 23 months to be presumptively
    unreasonable.

[18]

To rebut this presumption, the Crown relied on the complex case
    exception. The application judge recognized that the Crown had proceeded
    appropriately. In particular, the application judge recognized:

·

the prompt delivery of voluminous disclosure
    (within two months of the first disclosure request);

·

the seamless substitution of one senior Crown for another
    in the face of a sudden unexpected absence, averting any potential delays;

·

the early joining of the two sets of charges,
    streamlining the process and avoiding needless duplication of appearance; and

·

the Crowns ready acceptance of any and all dates
    offered by the court; the Crown made its request that these charges be heard by
    a provincial court judge on the first appearance, and ultimately withdrew all
    15 charges against the co-accused, DGC.

[19]

Despite finding that the Crown took appropriate steps, the application
    judge determined that the steps taken by the Crown were inadequate to meet the
    Crowns duty to develop and follow a concrete plan to minimize delay as
    required by
Jordan
. In particular, the Crown had not taken reasonable
    steps to move the case to trial under the presumptive ceiling in the event it
    did not resolve, by securing the trial dates before the JPT process was
    complete. The application judge also referred to the Crowns failure to respond
    to the May 25, 2017 email until the eve of the next JPT, and found that the JPT
    was largely frustrated by the Crowns late production of a witness list.

APPEAL TO SCJ

[20]

The appeal judge found that the application judge applied the correct
    standard as to whether the Crown had developed a concrete plan and that the
    finding that the Crown did not secure trial dates in a timely manner or take
    steps to streamline the evidence to be introduced at trial was entitled to
    deference.

LEAVE TO APPEAL TO THIS COURT

[21]

The test for leave to appeal to this court is set out in s. 131 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33
:

Appeal to Court of Appeal

131
(1) A defendant or the prosecutor or
    the Attorney General by way of intervention may appeal from the judgment of the
    court to the Court of Appeal, with leave of a judge of the Court of Appeal on
    special grounds, upon any question of law alone or as to sentence.

Grounds for leave

(2) No leave to appeal shall be granted under
    subsection (1) unless the judge of the Court of Appeal considers that in the
    particular circumstances of the case it is essential in the public interest or
    for the due administration of justice that leave be granted.

Appeal as to leave

(3) No appeal or review lies from a decision on a
    motion for leave to appeal under subsection (1).

[22]

This is a stringent test requiring the applicant to establish that the
    appeal involves a question of law alone and
is
    essential for the public interest or for the due administration of justice
.

[23]

The proposed grounds for appeal are that the appeal judge failed to
    recognize that:

1.

the trial judge erred by including in the total delay the anticipated
    time for judicial deliberation after trial;

2.

the trial judge misapplied the standard imposed by
Jordan
that the Crown develop and follow a concrete plan;

3.

the trial judge erred in failing to consider the
    respondents requests and the courts acquiescence in the delay in connection
    with resolution discussions;

4.

the trial judge erred in failing
    to attribute any delay to the respondents.

[24]

The respondents submit that each of these proposed grounds involve  as
    found by the appeal judge  questions of mixed fact and law. As such, no appeal
    lies to this court: see
Ontario (Ministry of the Environment and Climate
    Change) v. Sunrise Propane Energy Group Inc.,
2018 ONCA 461. In addition,
    they submit that deference is owed to the application judges conclusions about
    whether the Crown acted reasonably and whether the case met the exceptional
    circumstances threshold:
Jordan
, at paras. 78-79.

ISSUES

[25]

The issue is whether the proposed appeal involves a question of pure
    law and if so, whether the appeal is essential for the public interest or for
    the due administration of justice.

ANALYSIS

[26]

I begin with a brief review of the
Jordan
principles. I then
    consider whether the issues raised satisfy the test for leave.

[27]

The majority in
Jordan
proposed a new framework for
Charter
applications under s. 11(b). The framework is based on a ceiling beyond
    which delay is presumptively unreasonable: 18 months for cases tried in
    provincial courts without a preliminary inquiry, and 30 months for cases tried
    in provincial courts after a preliminary inquiry or in superior courts. Delays
    attributable to the defence are to be subtracted to arrive at net delay. Where
    the net delay exceeds the presumptive ceiling, the Crown bears the onus of
    establishing that the delay was reasonable because of the presence of
    exceptional circumstances. Exceptional circumstances have two components: (i)
    they are reasonably unforeseen or reasonably unavoidable, and (ii) the Crown
    cannot reasonably remedy the delays emanating from those circumstances once
    they arise:
Jordan
,

at
    para. 69 and
R. v. Cody
,
2017 SCC 31, [2017] 1 S.C.R. 659, at para. 58.

[28]

Generally, there are two types of exceptional circumstances: discrete
    events and  as applies here  complexity. Where the delay exceeds the ceiling,
    the court will look to the complexities of the case to determine whether the
    delay or passage of time is nonetheless reasonable.
[1]
In considering exceptional
    circumstances caused by complexity, the court should consider whether the Crown
    has developed and followed a concrete plan to minimize delay occasioned by
    the complexity. As
Jordan
stated at paras. 79 and 81:

[T]he trial judge will also want to consider whether the Crown,
    having initiated what could reasonably be expected to be a complex prosecution,
    developed and followed a
concrete plan
to minimize the delay occasioned
    by the complexity. Where it has failed to do so, the Crown will not be able to
    show exceptional circumstances, because it will not be able to show that the circumstances
    were outside its control.



[T]he presence of exceptional
    circumstances is
the only basis
upon which the Crown can discharge its
    burden to justify a delay that exceeds the ceiling. [Citations omitted; italics
    in original; underlining added.]

[29]

Jordan
has been previously considered
    multiple times by this court. In
R. v. Picard
, 2017 ONCA 692, 137 O.R.
    (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135, this court indicated
    that the complexity of the case must be assessed more broadly over the course
    of the entire proceeding, rather than on how the case presents at trial: paras.
    57 and 60-64; see also
Cody
, at para. 64.

[30]

In
R. v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, leave to
    appeal refused, [2016] S.C.C.A. 513, at para. 308, this court identified the
    types of actions required of a Crown that would demonstrate it took reasonable
    steps. At para. 308, Watt J.A. said:

What is required of the Crown is a
    demonstration that it took reasonable steps to avoid and address the problem
before
the delay exceeded the ceiling. Prompt resort to case management processes.
    Requests of the defence to streamline evidence or issues at trial. Coordination
    of pre-trial applications. Invocation of other appropriate procedural
    mechanisms:
Jordan
, at para. 70. What counts is effort and initiative,
    not success. [Emphasis in original.]

[31]

This court also discussed the complex case exception in
R. v.
    Saikaley
, 2017 ONCA 374, 348 C.C.C. (3d) 290, leave to appeal refused,
    [2017] S.C.C.A. No. 284. At paras. 47 and 48, the court stated:

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

In our view, the Crown did have a
    concrete plan to move this very complex case forward. Nothing in the Crowns
    conduct complained of exacerbated the delay. To the contrary, the Crown acted
    reasonably and took steps to reduce the delay, including severing charges, and
    withdrawing charges against the appellants wife. Accordingly, in our view,
    although the net delay in this case exceeds the presumptive ceiling, we are
    satisfied that the case was particularly complex and that the delay was
    justified.

[32]

More recently, this court considered the
    standard of review when dealing with the characterization of actions
    constituting delay.
In
R. v. Jurkus
, 2018 ONCA 489, 363 C.C.C. (3d) 246
,
    leave to appeal dismissed [2018] S.C.C.A. No. 325, this court made it clear
    that the ultimate decision as to whether there has been unreasonable delay is subject
    to review on a standard of correctness. So too is the characterization of the
    period of delay. Justice Fairburn stated in
Jurkus
,

at para. 25:

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

[33]

There are no facts in dispute in this proposed appeal. The issue is the
    characterization of the Crowns conduct. According to
Jurkus
,
this is a question of law.

[34]

Even apart from
Jurkus
,
I conclude that questions of pure law are raised on these issues:

1.

the role of acquiescence by defence counsel in the settlement process
    and the involvement and concurrence of the case management judge;

2.

the addition of judicial reserve time to the net delay, a factor over
    which the Crown has no control
[2]
;
    and

3.

the requirement that the Crown secure a trial date during the ongoing
    JPT process.

[35]

These questions of law bear individually and collectively on the
    administration of justice. They engage the often-competing imperatives of
    resolution involving judicial case management and delay reduction, the
    reliability of trial lists if dates are secured which may or may not be needed,
    and the addition of judicial reserve time. These issues of law are essential to
    the administration of justice and engage the delay reduction issues at the
    heart of
Jordan
.

DISPOSITION

[36]

For these reasons, leave to appeal is granted.

M.L. Benotto J.A.





[1]
Although the charges were laid before the release of
Jordan,
the Crown
    does not rely on the transitional exceptional circumstances.



[2]
This court considered the question of whether the time a judgment is under
    reserve is included in the calculation of total delay in
R. v. MacIsaac
,
    2018 ONCA 650, 365 C.C.C. (3d) 361, at paras. 32-37, and determined it was not
    necessary to resolve the issue on the facts of that case. The Alberta Court of
    Appeal determined that time consumed by reserved decisions should be excluded
    in the s. 11(b) analysis:
R. v. Mamouni,
2017 ABCA 347, 58 Alta. L.R.
    (6th) 283, leave to appeal refused, [2018] S.C.C.A. No. 176, at para. 92.


