Les délais ''défense'', les circonstances exceptionnelles et l'erreur d'appréciation de la durée du procès par les parties

R. v. McNeill-Crawford, 2020 ONCA 504

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[23]      Returning to the trial judge’s analysis, she next subtracted delay attributable to the defence: Jordan, at para. 60. The trial judge calculated defence delay as 80 days.[1] The appellant does not contest this finding on appeal. Deducting 80 days leaves a net delay of 19 months and 5 days. The trial judge properly acknowledged that since the net delay exceeded the 18-month ceiling, it was presumptively unreasonable and that the respondent had to establish the presence of exceptional circumstances to rebut this presumption, failing which a stay would follow: Jordan, at para. 47.

[24]      The main focus of the trial judge’s subsequent analysis and the parties’ submissions was the 3-month and 28-day period of delay between September 13, 2018 and January 9, 2019. The trial judge’s characterization of this period as an exceptional circumstance and her deduction of this period from the delay in issue brought the delay well under the Jordan presumptive ceiling.

[25]      The appellant challenges the trial judge’s characterization of this period as arising from an exceptional circumstance, namely the parties’ good faith but mistaken estimate of the time required for trial. He submits that the delay should be solely attributable to the Crown: but for the late disclosure of the DNA and toxicology reports from the CFS, the Crown’s unilateral release of the third scheduled trial day, and the Crown’s failure to properly prepare its witness, Ms. Podniewicz, the trial could have been completed within the Jordan presumptive ceiling.

[26]      I do not accept these submissions.

[27]      The Supreme Court of Canada in Jordan generally defined exceptional circumstances as those that lie outside the Crown’s 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: at para. 69.

[28]      It is well recognized that good faith but mistaken estimates of trial time may give rise to exceptional circumstances. As the Court noted in Jordan, at para. 73: “Trials are not well-oiled machines. … [I]f the trial goes longer than reasonably expected — even where the parties made a good faith effort to establish realistic time estimates — then it is likely that the delay was unavoidable and may therefore amount to an exceptional circumstance.” See also: Jurkus, at para. 55; R. v. Antic, 2019 ONCA 160, 430 C.R.R. (2d) 46, at para 8, leave to appeal refused, [2019] S.C.C.A. No. 128.

[29]      The trial judge described how the miscalculation of the trial time estimate, by both parties, was made in good faith. She made the following findings to explain how the estimate of a two-day trial became a six-day trial and why she considered that there were exceptional circumstances:

1.   Four Crown witnesses testified as anticipated. The voluntariness voir dire that the trial judge instigated was unanticipated and took place on the first scheduled day of trial, August 28, 2018.

2.   Ms. Podniewicz testified over two days on September 12 and October 3, 2018.

3.   The expert evidence for both the Crown and defence, the remainder of the DNA evidence and the deferred cross-examination of Sergeant Henderson, the officer who seized and swabbed the methadone bottle, was heard on one day, on January 7, 2019.

4.   Almost two full days – January 8 and 9, 2019 – were devoted to the parties’ submissions. Less than one hour was used for continuity evidence related to the expert evidence.

[30]      The trial judge rejected the appellant’s contention that the delay was not caused by a good faith but mistaken trial estimate but should be attributed to the late disclosure of the expert’s reports and the Crown’s release of one trial day. She found that neither party anticipated that Ms. Podniewicz’s evidence would take two days rather than one. She concluded that these events made no difference to the mistaken trial estimate. She determined that even without considering the trial time required for the expert evidence, the original trial estimate could not have accommodated this trial.

[31]      In my view, the trial judge’s explanation for the increased trial time was open to her to make. There is no basis to interfere with it on appeal.