R. v. Yeo, 2023 NSPC 11

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Yeo , 2023 NSPC 11 Date: 20230201 Docket: 8245364, 8245365, 8245366, 8245367, 8245368 Registry: Dartmouth Between: His Majesty the King v. Arnold Bruce Yeo Judge: The Honourable Judge Theodore Tax, Heard: December 15, 2022, in Dartmouth, Nova Scotia Decision February 1, 2023 Charge: Section 255(2)x 4 & 255.(2.1) of the Criminal Code of Canada Counsel: Tiffany Thorne, for the Public Prosecution of Nova Scotia Victor Goldberg, K.C., for the Counsel for the Defence By the Court: [ 1 ] Mr. Arnold Yeo has filed a Charter application to have his criminal charges stayed. Mr. Yeo’s Charter application has been filed pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms [hereafter “the Charter ”] that the trial of the criminal charges which he faces has taken too long. In his application, Mr. Yeo states that he has a right to a trial within a reasonable time as guaranteed by

section 11(

b) of the Charter and that right has been violated. [ 2 ] Mr. Yeo was charged with having committed five offences on or about June 10, 2018, at or near Goffs, Nova Scotia. There are four allegations of having care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug and thereby causing bodily harm to four individuals, contrary to section 255(2) of the Criminal Code .

The fifth charge of having care or control of a motor vehicle, after having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol hundred millilitres of blood, causing an accident resulting in bodily harm, contrary to section 255(2.1) of the Criminal Code . [ 3 ] The Information alleging the five offences which are presently before the court was sworn on July 19, 2018. Based on the

schedule of trial proceedings, the “anticipated end of the trial” is June 15, 2023, which is the date that has been scheduled for the parties to make their closing arguments, if this Jordan application was dismissed by the Court. The Crown Attorney and Defence Counsel agree that, for the purposes of the R. v. Jordan , 2016 SCC 27 analysis as to whether there was an unreasonable delay in the trial, the “total delay” between those two dates is 1792 days or 58.9 months. [ 4 ] While the parties agree on some of the periods of “delay” which should be “deducted” from that “total delay” using the Jordan framework for the analysis of a

section 11(

b) Charter application, their submissions with respect to the assessment of several periods of “delay” is vastly different. Positions of the Parties: [ 5 ] Defence Counsel submits that when the defence waived or caused delay as well as “exceptional circumstances” are “deducted” from the “total delay” as per the Jordan framework for the analysis of the

section 11(

b) Charter applications, the “total delay” is 36.7 months, being more than double the Supreme Court of Canada’s unreasonable delay “presumptive” ceiling of 18 months for a trial in the Provincial Court.

He submits that the Crown has not established the presence of sufficient exceptional circumstances to rebut that presumption through either discrete events or this being a particularly complex case to bring the “total delay” below that “presumptive ceiling.” [ 6 ] In the alternative, Defence Counsel submits that, if the Court was to conclude that the “net delay” was below that 18 month “presumptive ceiling,” then, he points to the fact that the defence has taken significant steps to expedite the trial along the way through agreements and admissions.

Those “meaningful and substantial” steps expedited the trial and alleviated the need for the Crown to call several witnesses to relate the nature of their injuries, some statements by other individuals, presenting accident scene photographs and

not seeking an adjournment when some photographs were disclosed at the last moment.

In addition, Defence Counsel submits that this is not an overly complex case, but it has taken markedly longer than it should have. [ 7 ] For her part, the Crown Attorney submits that the “total net delay” is 13.7 months, being well below the 18 month “presumptive ceiling,” after subtracting defence delay and delay attributed to “exceptional circumstances” from “discrete events.” She submits that there were three very significant sets of “exceptional circumstances” which were totally unforeseeable and totally unavoidable by any reasonable efforts by the Crown to mitigate or avoid their impact before the total delay exceeded the ceiling. [ 8 ] It is the position of the Crown that there was far more defence waived or caused delay then what has been acknowledged by Defence Counsel.

However, the main difference between their two positions is that the Crown Attorney submits that there were three very “exceptional circumstances” as “discrete events” which rebut the presumption of unreasonable delay. [ 9 ] In particular, the Crown Attorney submits that those “exceptional circumstances” arose from the unforeseen and unavoidable suspension of court operations as a result of the Covid 19 pandemic in both 2020 and 2021 which actually cancelled previously scheduled court dates for trial evidence, and then having to reschedule court dates with the backlog of other postponed cases.

She also points to the unforeseeable medical issues of the defence expert witness [Mr. Johnstone] who, on a couple of occasions, was unavailable to testify on scheduled trial continuation dates.

Finally, she also submits that the trial took significantly longer to conclude than anyone had anticipated and coupled with those exceptional circumstances, as the trial progressed, the estimates of the additional time required to complete the trial were also underestimated, which resulted in several additional dates having to be scheduled. [ 10 ] In the alternative, the Crown Attorney submits that if the “net delay” as calculated by the Court exceeds the 18 month “presumptive ceiling”, then, this case was one that was sufficiently complex, with one expert witness being called by the Crown and two expert witnesses being called by Defence Counsel to provide opinion evidence to assist the Court.

As a result, the Crown elected to recall their expert witness to present rebuttal evidence. [ 11 ] It is the position of the Crown that the application for a stay of proceedings pursuant to

section 11(

b) of the Charter should be dismissed. Brief overview of Background Facts and Procedural History: [ 12 ] On June 10, 2018, at about 12:18 p.m., Mr. Yeo was operating a motor vehicle on Highway 102 after passing the exit to the Halifax International Airport inbound toward Halifax. Shortly thereafter, Mr. Yeo’s vehicle went off the passing lane of the inbound portion of the highway, through a center grass median, which sloped up to the outbound portion of the highway, became airborne and rolled several times on the outbound lanes of Highway 102. Mr.

Yeo’s car came to rest near Exit 5A on Highway 102, on its driver’s side, after colliding with several vehicles on the outbound portion of the highway. [ 13 ] As a result of the accident, the outbound portion of Highway 102 was closed, police officers and paramedics arrived to attend to the people in the cars involved in the accident. Firefighters were also on scene and the jaws of life were used to cut the roof off the Mr. Yeo’s car to extract him from the vehicle. He was assessed by paramedics at the scene. Const. Thomas spoke with Mr.

Yeo at the scene, making his own observations and obtaining information from other police officers and after that, he made an Approved Screening Device demand for Mr. Yeo to provide a sample of his breath at about 12:59 PM on June 18, 2018. Shortly thereafter, Mr. Yeo provided a suitable sample of his breath for analysis which registered as a “Fail.” Thereafter, Const. Thomas made a demand for Mr.

Yeo to provide suitable samples of his breath for analysis in an “Approved Instrument” at the detachment. [ 14 ] At the Lower Sackville RCMP Detachment, prior to providing suitable samples of his breath into an Approved Instrument, paramedics were again called to examine Mr. Yeo. After being assessed by the paramedics, Mr. Yeo provided two (2) suitable samples of his breath for analysis into the Approved Instrument, with the first one being at 2:54 PM on June 18, 2018, with the result of 170 mg of alcohol in 100 mL of blood.

After waiting a minimum of 15 minutes before providing a second suitable sample of breath for analysis, the second suitable sample for analysis was obtained at 3:29 PM with the result of 160 mg of alcohol in 100 mL of blood. [ 15 ] I note, parenthetically, that the sections of the Criminal Code under which Mr. Yeo was charged have since been repealed by Parliament and were replaced by

section 320.14(2) of the Criminal Code when those amendments came into force on December 18, 2018. The case has proceeded on the basis of the legislation and law in effect with respect to that legislation as of June 10, 2018. [ 16 ] Mr. Yeo was charged with the Indictable offences before the Court, in an Information which was sworn on July 19, 2018. He made his first appearance in court through his counsel on July 25, 2018. The matter was adjourned to October 1, 2018, when Defence Counsel received additional disclosure. The election and plea were then scheduled for December 14, 2018. On that date, Defence Counsel indicated that he “ waived delay ” pursuant to

section 11(

b) of the Charter as he was planning to obtain medical reports. Based upon that information, the election and plea were adjourned to February 25, 2019. [ 17 ] On February 25, 2019, Mr. Yeo, through his counsel, elected trial in the Provincial Court and after a discussion with Judge Brinton, this matter was set down for a four-day trial in Dartmouth Provincial Court #5 on December 3, 4, 10 and 17, 2019. The Crown Attorney had advised Judge Brinton that the estimated length of their evidence would be at least 2½ days and after hearing that, Defence Counsel stated that he was contemplating a three-day trial.

However, after hearing from the Crown Attorney, Defence Counsel stated that he planned to call at least two and possibly three experts, so the trial was “going to be somewhat complicated” and suggested that four (4) days should be scheduled for the trial. [ 18 ] During the discussion to set the trial dates, the clerk initially offered the first date being June 10, 2019, but Defence Counsel indicated that he was not available on that date.

He added: “I was thinking perhaps December or January… Four days straight.” Defence Counsel also requested a status date be set well before the trial dates as it “may well be” that they would bring a Charter application but were waiting for information from experts. Based upon those remarks by Defence Counsel, the Crown Attorney asked Defence Counsel to waive the delay of about six (6) months between the first date offered for trial on June 10, 2019, and the scheduled start of the trial on December 3, 2019.

Defence Counsel “agreed to waive that delay,” but indicated that “scattered dates, in my experience don’t help the efficiency of trial.”

Pre-Trial Conference & Status Dates for the Trial - [ 19 ] After scheduling the four days for trial, the Court also scheduled a pre-trial conference for July 3, 2019. The pre-trial conference was held in chambers on July 3, 2019. During the pre-trial conference, as confirmed by a

summary prepared by the Court and forwarded to counsel, the Crown Attorney mentioned that there may be as many as 22 witnesses if all were required to attend. She also indicated that the Crown would be calling expert “extrapolation” evidence. Defence Counsel indicated that they may be calling two (2) experts as well. Although four (4) days had been set for the trial, there was discussion as to whether additional or different days might be required, but the indication at that point was that the defence would probably not be raising Charter issues.

The parties agreed with the Court to set a further status date on October 8, 2019. [ 20 ] Immediately following the pre-trial conference, the parties came into court and, on the record, released the December 3, 2019 date, based upon a possible conflict for Defence Counsel. However, the Court was able to advise that December 18th had become available, so the four-day trial was then confirmed for December 4, 10, 17 and 18, 2019.

It was also stated that, during the upcoming status date on October 8, 2019, the parties would “see” if more or less time was required, depending upon whether there were any agreements in relation to the Crown calling up to 22 witnesses during the trial.

Defence Counsel expressed a preference that the trial dates be kept as close as possible to one another, and the Court agreed that it would be preferable to do so, rather than being months apart. [ 21 ] During the status update on October 8, 2019, Defence Counsel advised that his potential conflict for a couple of the December trial dates had been resolved, so he was available for all four days which had been confirmed on July 3, 2019. In addition, Defence Counsel asked that the Court

schedule another status date as he planned to speak with the Crown Attorney to determine if it was possible to “streamline” the witness list for the trial. Defence Counsel indicated that, even with streamlining the witness list, given the fact that it was likely that three experts would be involved, he could foresee lengthy cross-examination by both sides. [ 22 ] The Court scheduled November 12, 2019, as a further status date to check with counsel as to whether there had been some “fine-tuning” of the issues that had been mentioned.

The Court had also advised the parties that there was a two-hour matter on the morning of December 18, 2019 and asked counsel whether another day or half-day should be scheduled. The decision on whether extra time would be required was postponed to the next status update as the parties would be speaking about streamlining the witness list.

At that time, the Court advised counsel that a continuation date would likely be, at a minimum, 2 to 3 months after the December trial dates. [ 23 ] At the outset of the November 12, 2019 status update, Defence Counsel advised the Court that he had received instructions to file a Charter application and that he had sent notice of the application to the Crown the previous week. As a result, the focus of the discussion on this status update related to the handling of Mr. Yeo’s Charter application relating to his rights under

section 7 , 8 , 9 and 10(

b) of the Charter . Defence Counsel also indicated that he was continuing his discussions with the Crown Attorney with respect to disclosure issues and that they would be meeting the following week to discuss agreed facts or admissions to narrow the witness list and some trial issues. [ 24 ] Given that the trial dates were less than a month away, the issue of how the Charter voir dire would proceed was discussed. Defence Counsel advised the Court that the

Section 8 Charter issue related to whether the officer had the required “reasonable grounds to suspect” pursuant to section 254(2) of the Code [as in force on June 10, 2018] to make a valid Approved Screening Device demand that Mr. Yeo provide a sample of his breath for analysis.

The Court suggested that, if agreed, there could be a blended “ voir dire ” but after some discussion, Defence Counsel stated that they preferred a standalone voir dire with the possibility of later using the voir dire evidence in the trial. [ 25 ] Since the first day for the trial was only 3 weeks away, it was agreed that there was insufficient time to have a defence Charter brief and a Crown response, based upon the anticipated evidence of the voir dire, prior to the four days scheduled for the trial.

Defence Counsel suggested that the Charter voir dire evidence be heard on December 4, 2019, with briefs to be filed after the evidence was heard. Defence Counsel suggested keeping the December 10, 2019 date in case it was needed for further voir dire evidence, releasing the December 17 th date and scheduling the December 18, 2019 date for closing oral submissions on the Charter application.

The Court stated that December 17 th should also be retained “for now” in case it was needed as determined by the next status date which was then scheduled for November 26, 2019. [ 26 ] Once those dates were established, the Crown Attorney questioned whether the one expert to be called by the Crown and the two experts to be called by the defence would be available on the December dates.

Both counsel indicated that it would be advisable for the Court to set additional trial time, so that the expert witnesses could be contacted to determine their availability on those dates. [ 27 ] In setting those additional dates, the Court advised the parties that, given the “reality” of the schedule, the parties were now looking at dates in March 2020. In terms of how many days for trial should be scheduled, Defence Counsel responded that “probably two full days” would be needed for his experts and the Crown Attorney stated that that might not suffice given the evidence that they planned to call.

The Court offered four (4) full days for trial on March 17, 18, 24 and 25, 2020, but Defence Counsel was unavailable on those dates. Following that, the Court offered and held March 31 and April 7, 2020, for the parties to confirm the availability of their witnesses on those dates.

Schedule Dates for Charter Voir Dire /Release and

Schedule New Trial Dates - [ 28 ] During the November 26, 2019, status date, the Court confirmed that the purpose of this status date was to reschedule trial dates and to confirm the plan for the Charter application. Counsel confirmed that it was their intention to proceed with the evidence for the Charter voir dire on December 4, 2019, filing the Charter briefs after that hearing and then returning on December 18 th to make oral submissions.

The Court indicated that the date for the decision on the Charter voir dire would be determined after the oral submissions on December 18, 2019. [ 29 ] As a result of proceeding in that manner, and the fact that the parties believed that all the Charter voir dire evidence could be heard on December 4, 2019, the previously scheduled trial dates of December 10 and 17, 2019 were released. Since there was not

enough time for the Defence to file their brief and the Crown reply before December 18, 2019, the Court confirmed with the parties that they would file their briefs, at the same time , on or before December 16, 2019, and would have the opportunity to make oral submissions on December 18, 2019. [ 30 ] In terms of the trial dates, the parties confirmed that March 31, 2020 remained a good date for both sides, however, Defence Counsel advised that his expert was not available on April 7, 2020.

After hearing that April 7 th was no longer a convenient date to both sides, the Crown Attorney indicated that they would need 2 to 3 additional days for the trial. Defence Counsel indicated that was “correct” and added that the Court should

schedule a fourth additional day after the date when the Charter voir dire decision was delivered. In essence, the parties’ estimate of the time required for the trial, after the Charter voir dire decision was the same [4 days] as had been originally scheduled for trial in December 2019. [ 31 ] The parties had already confirmed that March 31, 2020, remained a good date for both sides and having released the April 7th date because the defence witness was not available, the Court then scheduled three (3) more days for a total of four (4) days for the trial on April 22 and 29, 2020 as well as May 5, 2020.

The parties also indicated that it would be ideal for the Charter voir dire decision to be provided prior to the trial continuation date on March 31, 2020, as that decision would likely impact whether the four additional days which had just been scheduled would all be needed. [ 32 ] During this status date, the Crown Attorney also made an application for their toxicology expert to testify by video, which was not opposed by the defence.

However, given the scheduling of the Charter voir dire , it was confirmed that the expert would not be called on December 18 th as had been planned, as her evidence was not relevant to the issues on the Charter voir dire. Charter Voir Dire – Day 1 - December 4, 2019 - [ 33 ] On December 4, 2019, Const. Grant Thomas of the RCMP was the only witness called on the Charter voir dire . Once Const. Thomas’s evidence was concluded, the parties indicated to the Court that no other evidence would be called. Court was adjourned at 2:45 PM. The date for the oral submissions of counsel on the

section 8 Charter voir dire had previously been scheduled for December 18, 2019. Charter Voir Dire – Day 2 - December 18, 2019 - [ 34 ] On December 18, 2019, the parties made their oral submissions on the

section 8 Charter voir dire , and the court reserved its decision. After canvassing dates when the Court and counsel would be available for the delivery of the decision, it was determined that the March 31, 2020 trial date would be converted to the decision date for the Charter voir dire . Since that previously scheduled date for trial would be taken up by the Charter decision, the Court was able to add another half-day for the trial continuation on May 13, 2020, at 1:30 PM.

As a result, the four (4) days then rescheduled for the trial then became April 22 and 29, 2020 as well as May 5 and May 13, 2020, in Dartmouth Provincial Courtroom #5. Covid 19 Measures by Provincial Court Vacating dates for Charter Voir Dire Decision and the First 4 Days Scheduled for Trial which had been scheduled for March 31, 2020, April 22 and 29, 2020 and May 5 and May 13, 2020 - [ 35 ] On March 16, 2020, the Provincial Court of Nova Scotia issued a public notice that certain measures were being put in place by the Court as a result of Covid 19.

The Chief Judge indicated in that notice that “Starting Tuesday, March 17, access to Provincial Courts will be restricted to only those persons who are necessary to the proceedings before the Court.” Chief Judge Williams also indicated that “For many matters presently before the Provincial Court, efforts are being made to adjourn the next appearance until after May 31, 2020.” [ 36 ] On March 30, 2020, Chief Judge Williams stated on the record, based upon the previous notice and public health measures which had been put in place to address the Covid 19 pandemic that all matters scheduled for Courtroom #5 in Dartmouth Provincial Court will be adjourned until the end of May.

As a result, the previously scheduled trial dates of March 31, 2020, April 22 and 29, 2020, May 5 and May 13, 2020, were vacated by the Court. Chief Judge Williams also stated that matters scheduled for March 31, 2020, which included the Yeo trial, would be adjourned to June 23, 2020, at 9:30 AM to re-schedule new trial dates.

June 23, 2020 - Rescheduling the Covid Cancellations of Charter Voir Dire Decision and the first 4 Days for Trial – [ 37 ] During the June 23, 2020, telephone appearance by counsel with the Court, the Court advised that this was a hearing to set the date for the release of the Charter voir dire decision and to reschedule trial continuation dates.

The Court indicated that, working from home, it was difficult to have access to files at the court and completion of the decision might take another 3 to 4 weeks. [ 38 ] In terms of scheduling, the Crown Attorney advised the Court that it would be helpful to have the Court’s Charter voir dire decision first as it would likely impact whether the Crown would need to call their expert and a number of other witnesses. Defence Counsel indicated that if the Crown called their expert witness, then, the defence would likely have two experts to be called and trial time would be needed for those witnesses.

The Court asked if two or three days should be scheduled for the trial itself, the Crown Attorney suggested four days and Defence Counsel indicated that they would need three or four days for the trial. [ 39 ] The Crown Attorney advised the Court that they were initially planning to call over 20 witnesses, but she was working on agreements and admissions with Defence Counsel to narrow the witness list.

They were also considering filing a booklet of photographs without certain witnesses being called, but even with those agreements, the Crown would still have 8 to 10 witnesses and Defence Counsel indicated that there would be defence evidence.

As a result, the Crown Attorney asked that a few days be set for trial continuation and depending on the Charter voir dire decision there may be a need to set some more dates after the decision. [ 40 ] The court clerk asked whether the Charter voir dire decision could be delivered on July 15, 2020, but the Court answered that might be “a little too soon” to complete the decision and added that only “a little extra time” was needed. The Court stated that the Charter voir dire decision would be delivered well before the trial continuation dates. The Court suggested scheduling two days for trial

and holding another two days for the purpose of the trial continuation if they were needed. [ 41 ] In terms of a possible Charter voir dire decision date, the clerk then offered August 13, 2020, but moments later, it was determined that there was no courtroom available on that date. As a result, the clerk canvassed several other dates in August, September, and early October, but there were either no vacant courtrooms or other matters had been scheduled for the entire day. Finally, it was determined that the Court, the parties and a courtroom were all available, on October 22, 2020, and that date was scheduled for the Charter voir dire decision. [ 42 ] Following those efforts to

schedule the Charter voir dire decision, the Court and the parties scheduled four (4) full days for the trial continuation on December 2, 2020, January 5 and 6, 2021 and January 12, 2021.

The Court noted that it would be difficult to find four days in a row and that those dates provided a block of time relatively close together. [ 43 ] In addition, the Court stated that it was unlikely any earlier trial dates would open up due to the court having to deal with the matters where trials had not been affected by Covid 19 measures, rescheduling trials which had been vacated by the Covid 19 measures at the same time as new matters before the court required trial dates. Furthermore, the Court stated that a priority was being given to trials or new matters involving people who were in custody.

Finally, the Court noted that the ongoing Covid protocols may lengthen the time required for trial and encouraged the parties to reach agreements on “peripheral” issues which might shorten the amount of court time required for the trial. [ 44 ] The Charter voir dire decision was delivered on October 22, 2020. The Court held that Const. Thomas had sufficient grounds to make an ASD demand and that the search and seizure was carried out in a reasonable manner. The Court concluded that there was no violation or infringement of Mr. Yeo’s

section 8 Charter right to be secure against unreasonable search or seizure and dismissed the application. [ 45 ] Trial – Day 1 - December 2, 2020 - The evidence in the trial proper commenced on December 2, 2020. Prior to calling the first witness, the Crown Attorney indicated that she had reached an agreement with Defence Counsel to file Exhibit 1 in the trial which was a series of admissions that the parties had concluded, which greatly reduced the potential number of witnesses to be called by the Crown.

In addition, many of the photographs that had been filed during the Charter voir dire which had not been a blended voir dire , were filed as Exhibit 1. [ 46 ] The Crown Attorney called and completed the evidence of its first three witnesses – Sgt. Lyndon Morrison, Const. Robert Kellock and Const. Kayla Jeffrey. The Crown Attorney had also planned to call Const.

Deidre MacIntyre but there was not enough time at the end of the day to do so and her testimony was postponed to the next trial date. [ 47 ] Prior to concluding for the day, the Crown Attorney indicated that she had just received 4 photographs taken by Const. MacIntyre and that they had just been disclosed to Defence Counsel. At that point, Defence Counsel stated that the Crown still had three witnesses before their expert witness, and that the trial would not finish on the three remaining days already scheduled for the trial. Defence Counsel asked the Court to

schedule three additional days for the trial as soon as possible as he was concerned with delay and the amount of time that the trial had taken to date. [ 48 ] With respect to the issue of the late disclosure of the four photographs, the Crown Attorney stated that she would be prepared to forgo filing those photos if Defence Counsel needed an adjournment to review them. She also stated that the Crown was cognizant of Jordan issues and the Crown was attempting to mitigate delay by working with her court partner to see if other cases could be resolved to create trial time for this matter.

The Crown Attorney agreed that more trial time would be needed. [ 49 ] In addition, the Court asked the clerk to see if additional court time could be secured. The Court noted that trials were taking longer with the Covid protocols in place.

The court clerk stated that finding other court dates would require a conversation with the Chief’s office, as there was no available time for a half-day or full-day trial in this courtroom until August or September 2020. [ 50 ] The Court also advised counsel that, as part of the conversation with the Chief Judge’s office, the Court would be looking at the possibility of using any vacant courtroom in the Halifax Regional Municipality to

schedule this matter. However, the Court reiterated that it was difficult to find additional trial time on short notice, given the Provincial Court’s stated priority of dealing with trials of people in custody, which had been postponed due to the Covid 19 public health restrictions and the cancellation of other previously scheduled trials. [ 51 ] The Crown Attorney indicated that she would probably need at least a further 1.5 days to complete her case as she has three more witnesses and then planned to call her expert witness.

At that point, the Court asked the parties to discuss whether it would be a contested Mohan voir dire with respect to the expert qualifications of the witness, as a contested voir dire would require an additional time commitment. [ 52 ] Trial – Day 2 - January 5, 2021 - At the outset, prior to calling the witnesses who were at the court, the Crown Attorney sought guidance from the Court with respect to the recent receipt of an amended notice of the defence expert report on December 14, 2020. She had anticipated having the Crown expert [Ms.

Hackett] prepare a rebuttal report but indicated that would take time and she had hoped to call her expert that day or the next day. [ 53 ] The Crown Attorney indicated that a short adjournment of Ms. Hackett’s evidence might “streamline” proceedings, but there was a concern that in doing so it may create a delay. Defence Counsel was concerned from a “trial fairness” position that it might provide the Crown with two opportunities to rebut the opinion of the defence expert. [ 54 ] Following fulsome discussions on the issue with the parties, the Court concluded, and Defence Counsel agreed that Ms.

Hackett should provide her opinion evidence based upon her original report and be subject to cross-examination in the “natural flow of evidence” rather than also commenting on the “anticipated opinion evidence” of the defence expert. The Crown Attorney also agreed with that approach, but added that she would likely be calling Ms. Hackett to provide further expert opinion evidence on rebuttal.

[ 55 ] During the discussions with respect to the opinion evidence of Ms. Hackett, Defence Counsel raised his concern with respect to the amount of time that it was taking to proceed with this trial. The Crown Attorney advised the Court that the issue with respect to Ms. Hackett’s evidence arose because she only had 11 “clear days” notice of the amended defence expert report. She indicated that it was late notice and that the defence had known for almost a year that they would be calling expert opinion evidence in this area. As a result, Ms.

Hackett did not have a reasonable amount of time to prepare an amended or supplemental report in advance of this trial date. [ 56 ] With respect to the potential Jordan issue of the unreasonable delay, the Court indicated that, ultimately, it was open to the defence to advance that Charter application if they were of the view that there had already been an unreasonable delay in the trial proceedings. However, the Court also indicated that this was a “very complex trial” and that it was anticipated that at least three experts would be called.

The Court also stated that, the fulsome discussion with counsel around the expert report and evidence of Ms. Hackett, to ensure that there was a “fair trial” to both sides, was an example of the complex nature of the trial. [ 57 ] In addition, the Court noted that significant efforts had been made to secure additional trial time on relatively short notice through the Chief Judge’s office. As a result, the court clerk had previously forwarded an e-mail to advise the parties that the Court had secured 3 additional days for trial on January 8, 15 and 28, 2021.

The Court advised the parties that it was very difficult to

schedule any court dates on short notice as there were many “moving parts” to coordinate. The court clerk had also advised the parties that, in this courtroom, there was no available time for half-day or full-day trials until August or September 2021. [ 58 ] In response to those proposed dates, the Crown Attorney indicated that neither she nor Ms. Hackett were available on January 8 or January 15, 2021, but she could re-arrange her

schedule to make herself available on January 28, 2021. Defence Counsel stated that he was available to continue with the trial on all three of those dates. After hearing that, the Court also stated that, prior to continuing with the trial, earlier that morning, other parties had indicated that it was likely trial time would be available on June 29, 2021.

As a result, counsel confirmed that they were available on that date and the Court agreed to hold that date, based upon what the Court referred to as the proposed “trajectory” of the trial evidence, for the Court’s trial decision. [ 59 ] On this second full day of the trial [January 5, 2021], due to the fact that the Court had to deal with some other matters during the day, the Crown was only able to complete the evidence of Const. McIntyre and Const. Michael Collins. Prior to concluding for the day, the Court discussed the setting of future dates for trial evidence with the parties.

The Court asked the parties if they would need two more days past the currently scheduled January 28, 2021 date. The Crown Attorney said that she had only completed three of the six witnesses planned for that day and would need another 1.5 days for their remaining witnesses. Defence Counsel noted that, in addition to the dates already scheduled by the Court, he would need three more days scheduled for the defence evidence. [ 60 ] Trial – Day 3 - January 6, 2021 - The Crown called their next three witnesses, Constables Grant Thomas, Shealynn Wellwood and Traci Boswell. After the evidence of Const.

Thomas was completed by mid-afternoon, the Crown Attorney indicated that they would be calling two civilian witnesses. Prior to a short break at that point, Defence Counsel asked if the Court had obtained any additional dates for the trial. The Court stated that, arrangements were being made with the Chief Judge’s office and it was likely that three days in mid-March could be obtained for the trial continuation. The Court stated that the parties would be advised of those of days shortly to be able to confirm the availability of their witnesses. [ 61 ] After the evidence of Const.

Traci Boswell was concluded, the Crown Attorney said that her final witness in the trial, would be their expert witness, Ms. Hackett. It was anticipated that Ms. Hackett would testify on January 12, 2021, and counsel estimated that her direct examination and cross-examination would likely take most of the day. The Crown Attorney candidly indicated that this was her time estimate for the evidence, but her estimates had been “off” in the past in terms of the length of the trial. [ 62 ] Defence Counsel indicated that he expected that there would be a significant cross-examination of Ms.

Hackett and it was unlikely that her evidence would be completed before 3:30 PM the next day. Defence Counsel added that he would prefer not to put his client on the stand at that time, but essentially start with his client’s evidence that next full day for trial. [ 63 ] Trial – Day 4 - January 12, 2021 - The Crown Attorney called their expert witness, Josette Hackett who testified by videoconference. There were some technical problems with the video connection to Ms.

Hackett in Ottawa which briefly interrupted the proceedings, and following that, the Crown Attorney stated that she and the Defence Counsel had agreed that there would not be a contested Mohan voir dire. They had agreed on the areas where she could be qualified to express expert opinions. [ 64 ] However, the Crown Attorney said that she may go into some depth on Ms. Hackett’s qualifications as Defence Counsel had indicated that he would also be posing some questions with respect to her qualifications, while not being contested, which might affect the weight of her opinion evidence.

The questioning in relation to Ms. Hackett’s qualifications by both counsel took up most of the morning. [ 65 ] In addition, prior to concluding the morning session, the Court asked counsel to confirm their availability for the three additional days for trial that had been proposed in March 2021 by the Court. Both sides wished to speak to their witnesses about their availability. In addition, the Crown Attorney confirmed that she and Ms. Hackett had made changes to their schedules, and they were available on the proposed trial continuation date of January 28, 2021. [ 66 ] After Ms.

Hackett was qualified to express expert opinion evidence, the Crown Attorney commenced her direct examination and advised the Court that her direct examination would probably take most of the afternoon. Defence Counsel had indicated that, if there was only a short amount of time left in the day, rather than commence his cross-examination of Ms. Hackett, he had a defence witness on standby and that time could be used for his evidence. [ 67 ] The direct examination of Ms. Josette Hackett was conducted in the afternoon of January 12, 2021and concluded shortly before 4 PM.

Defence Counsel indicated that he would start the cross-examination of Ms. Hackett as he did not wish to incur any delay. Defence Counsel commenced his cross-examination of Ms. Hackett and proceeded to an appropriate point to stop for the day with the cross- examination to be continued on January 28, 2021. [ 68 ] Trial – Day 5 - January 28, 2021 - At the outset of the proceedings, Defence Counsel informed the Court that his expert

witness in pharmacology, Mr. Greg Johnstone had recently undergone an emergency bypass surgery, was recovering and would not be in court to hear the cross-examination of Ms. Hackett. However, Defence Counsel stated that he was prepared to proceed with the cross- examination of Ms. Hackett in the absence of his defence expert as he was told that Mr. Johnstone required a minimum 90 days of recuperation. [ 69 ] In addition, Defence Counsel indicated that he would likely complete his cross-examination of Ms. Hackett in the morning. Since Ms.

Hackett was the final Crown witness, Defence Counsel said that he would call a third-party witness in the afternoon and call Mr. Yeo on the next court date of March 15, 2021. He estimated that the direct and cross-examination of Mr. Yeo might take all day on March 15, 2021. Defence Counsel planned to call his respirology expert on March 16, 2021, at 1 PM as the doctor had Covid ICU commitments that morning and he was not available on March 17, 2021. The other defence expert witness, Mr.

Greg Johnstone, was scheduled to be the last defence witness and Defence Counsel suggested that two days should be scheduled for his evidence. [ 70 ] Prior to continuing with Ms. Hackett’s opinion evidence on a January 28, 2021, after hearing the plans for the defence case, the Court confirmed that everyone was available except for Mr. Johnstone during the three upcoming trial dates which had been recently secured for March 15, 16 and 17, 2021. [ 71 ] Defence Counsel indicated that, given Mr. Johnstone’s recuperation period, a date after May 15, 2021, would probably be a convenient for him.

The Court noted that, on a previous day, June 29, 2021 had been held as a tentative date for the completion of the evidence or closing submissions . The Crown Attorney and Ms. Hackett confirmed their availability on that date. [ 72 ] In terms of scheduling other additional days for the trial, the Court and the Crown Attorney had noted that trials in Dartmouth Courtroom #5 were recently being scheduled in November 2021. The Court reiterated that, finding additional earlier trial dates required assistance from the Chief Judge’s office to switch the Court’s

schedule and find a vacant courtroom, when everybody was available or be advised by the Crown Attorney in a timely manner that some upcoming trials in this court would not be proceeding. [ 73 ] Crown Closes on Trial Day 5 [January 28, 2021] - Defence Case Commences - Ms. Hackett’s cross-examination and the Crown Attorney’s re-direct examination were completed at about 3 PM on January 28, 2021. Following the conclusion of Ms. Hackett’s evidence, the Crown Attorney tendered the exhibits which had been filed by the Crown and closed her case. [ 74 ] After a brief break, Defence Counsel called his first witness, Mr.

Peter Morrison. The direct examination, cross-examination and redirect examination of Mr. Morrison was completed within about one hour around 4:15 PM. [ 75 ] Trial – Day 6 – March 15, 2021 - At the outset of the proceedings, Defence Counsel confirmed that Mr. Yeo would be testifying that day, with the respirology expert, Dr. Leblanc being scheduled for Tuesday, March 16 th , but due to his Covid ICU commitments at the hospital, he would only be available at 1:30 PM that day. If needed, Dr.

Leblanc would only be available for the morning on Wednesday, March 17 th due to his hospital Covid ICU commitments. [ 76 ] Defence Counsel advised the Court that he did not believe his direct examination of Dr. Leblanc would be that long and although he could not predict how long the cross-examination by the Crown Attorney would be, he hoped that Dr. Leblanc’s evidence could be completed within that timeframe, as he had those firm hospital commitments. The Crown Attorney stated that given Dr.

Leblanc’s expert report, she estimated that the cross-examination would likely continue on March 17, 2021, in the morning. [ 77 ] Defence Counsel confirmed that the additional day scheduled on June 29, 2021, would be for the expert evidence of Mr. Johnstone. As for other dates for the trial continuation, the Crown Attorney indicated that she had corresponded with the clerk for courtroom #5 that there was a possibility of trial time being available on October 19, 2021. The Court stated that the parties would soon be advised if that was an available trial continuation date. [ 78 ] After the upcoming

schedule issues had been addressed, Defence Counsel called Mr. Yeo to the witness stand. Mr. Yeo’s direct examination continued until the lunch break and concluded about a half hour after Court recommenced for the afternoon. After a brief recess, the Crown Attorney commenced her cross-examination, which continued for the balance of the afternoon. The Crown Attorney advised that she believed that her cross-examination Mr. Yeo would be completed the next morning, prior to Dr.

Leblanc’s evidence, who was only available on the afternoon of March 16, 2021. [ 79 ] Following the adjournment of the trial to the following morning, the Crown Attorney also advised the Court that a relatively brief, but urgent matter, had been scheduled for 9:30 AM on March 16, 2021, and as a result, Mr. Yeo’s cross-examination was scheduled to continue at 10 AM on March 16, 2021. [ 80 ] Trial – Day 7 – March 16, 2021 – The cross-examination of Mr. Yeo continued shortly after 10 AM and the Crown Attorney believed that she would finish her cross-examination before 11:30 AM. The cross-examination of Mr.

Yeo concluded at about 11:15 AM. Then, after a short break to allow Defence Counsel to review his notes, he advised that he did not have any re-examination questions. [ 81 ] Since the urgent custody matter had not proceeded in the morning as scheduled, it was heard immediately after the completion of Mr. Yeo’s evidence. The urgent custody matter concluded at about 1:15 PM, taking about 45 minutes more than those parties had estimated.

Given the length of that urgent matter, the Court requested that the parties in the Yeo trial be advised that the trial would resume at 2 PM instead of 1:30 PM in order to provide the court staff with a short break for lunch. [ 82 ] Dr. Aaron Leblanc was then called as an expert witness with Ms. Hackett being connected by the court’s video conferencing to hear his evidence. At the outset, the Court asked parties whether Dr.

Leblanc’s qualifications to provide expert opinion evidence were being contested and whether it would be necessary to conduct a contested Mohan voir dire. [ 83 ] The parties advised the Court that Dr. Leblanc’s expertise for providing opinion evidence was not, for the most part, being contested, however the Crown Attorney stated that she had only been provided with general areas to be covered by him and that there

may be issues of his expertise in certain specific areas. For those reasons, she stated that there would likely be several preliminary questions around his expertise to provide opinion evidence in those areas. [ 84 ] After those comments by Defence Counsel and the Crown Attorney around the preliminary questioning of Dr. Leblanc, once again, the videoconference technical difficulties occurred and interrupted Ms. Hackett’s virtual presence from Ottawa, in the trial. Similar technical problems had impacted her virtual presence in the proceedings on January 28, 2021.

The Court requested the assistance of the technical people to sort out the issue with the videoconferencing. [ 85 ] As a result, the Court adjourned at about 2:25 PM. When the trial resumed about 30 minutes later, prior to questioning Dr. Leblanc, the parties advised the Court that they had been able to draft wording of the areas in which Dr. Leblanc could provide opinion evidence.

However, counsel also indicated that they would still be asking preliminary questions, but they would not be conducting a contested Mohan voir dire . [ 86 ] After the preliminary questions were asked by both sides, the Crown Attorney stated that she was not opposed to most of the areas for which Defence Counsel sought to qualify Dr. Leblanc as an expert to provide opinion evidence.

However, after considerable discussion around the question of whether he had the necessary expertise relating to the absorption, distribution and elimination, especially of things like drugs, including alcohol, the qualifications which were approved by the Court were slightly modified from what had been proposed by Defence Counsel. [ 87 ] The preliminary questions by both counsel in relation to Dr. Leblanc’s qualifications to provide expert opinion evidence continued to the end of the day, and was determined that his direct examination would start the next morning. Defence Counsel reminded the Court that Dr.

Leblanc would only be available for the morning of Wednesday, March 17, 2021, starting at 10 AM until about 12 noon, when he had prior medical commitments. Defence Counsel estimated that he could condense his direct examination of Dr. Leblanc to 30 or 40 minutes and that would leave time in the morning for cross-examination. [ 88 ] Given the fact that Dr. Leblanc was only available for a couple of hours on the morning of March 17, 2021, the Court asked him whether he could also be available on the morning of the March 18, 2021. Dr.

Leblanc said that he could be available at that time and as a result that confirmation, the Court undertook to see whether a courtroom would be available to continue with his testimony, if needed, on Thursday, March 18, 2021. Both counsel confirmed their availability on March 18, 2021, prior to concluding for the day. [ 89 ] Trial – Day 8 – March 17, 2021 (Full Day Scheduled/Half Day Utilized) - Court commenced on this day, shortly after 10 AM, as had been requested by Defence Counsel to accommodate Dr. Leblanc’s schedule, with Ms. Hackett being virtually present by videoconference. The direct examination of Dr.

Leblanc by Defence Counsel went a little longer than he had estimated, finishing at about 11:55 AM. Dr. LeBlanc advised the Court that he had professional responsibilities at 1 PM, however, the Crown Attorney stated that she could not complete her cross-examination before that time. In addition, she wanted to review her notes and speak with Ms. Hackett before commencing her cross-examination. She suggested that the Court to obtain another date for the cross-examination of Dr.

Leblanc. [ 90 ] At that point and further to the discussion from the previous day, the Court asked whether everyone would be available the next morning on March 18, 2021, for the Crown Attorney to conclude her cross-examination of Dr. Leblanc and any re-examination by Defence Counsel. A few minutes later, everyone confirmed that they were available on the morning of March 18, 2021 and court was adjourned for the day. [ 91 ] Although March 17, 2021 had been scheduled for a full day of evidence, given Dr.

LeBlanc’s availability for only the morning, the Court noted that the Crown Attorney would have the afternoon to review her notes and consult with Ms. Hackett and prepare her cross-examination of Dr. Leblanc for the next day. [ 92 ] Trial – Day 9 – March 18, 2021 (Half-Day) - At the outset, the Court, once again, dealt with preliminary matters around the scheduling of upcoming dates. In addition, the Court confirmed that Ms. Hackett was now attending virtually by telephone as the video connection with her location Ottawa remained problematic. Defence Counsel confirmed that he had spoken with Mr.

Johnstone about testifying on June 29, 2021, and indicated that the date would work, because it was outside the three-month period for his recuperation from the heart procedure. It was also noted that the tentative date of June 29, 2021 date had been confirmed on a prior occasion as possibly being the date for closing submissions or the Court’s decision. [ 93 ] As a further preliminary matter, the Crown Attorney mentioned that a full day for the trial continuation had recently come available on October 19 th , 2021, and there was also half-day available on the afternoon of December 15, 2021.

The parties indicated that they were available on both of those dates and the Court confirmed those dates for the trial continuation. [ 94 ] Having confirmed that additional 1.5 days of court time for this trial, the Court noted that, based upon earlier estimates of time, Mr. Johnstone’s direct examination and cross-examination would likely take a full day if not more. As a result, the October 19 th date could be utilized for the completion of Mr.

Johnstone’s evidence and the half-day on December 15, 2021, could be utilized for any other defence evidence or for the Rebuttal evidence that the Crown Attorney had previously indicated, would likely be called. [ 95 ] After dealing with those preliminary matters, the Crown Attorney commenced her cross-examination of Dr. Leblanc. The cross-examination continued until taking a brief mid-morning break around 10:50 AM. The Crown Attorney indicated that she still had many questions to pose on cross-examination. Dr.

Leblanc said he could remain in court to answer questions until about 1 PM, but repeated that he had other professional commitments that afternoon. [ 96 ] The Crown Attorney indicated that she was probably halfway through her questions on cross-examination and with everyone indicating that they were prepared to stay until 1:00 PM, the cross-examination continued. After a short health break, the Crown Attorney completed her cross-examination of Dr. Leblanc and he responded to some questions posed by the Court until shortly after 1:00 PM. However, Dr.

LeBlanc volunteered that he could stay a little bit longer, answered a few more questions posed by the Court and re- examination by Defence Counsel. He was excused as a witness at about 1:20 PM.

[ 97 ] Once Dr. Leblanc’s testimony was completed, there was a short discussion about obtaining transcripts on the dates when trial evidence was heard. Defence Counsel expressed his concern with respect to the length of time that the case had taken to date as the Crown Attorney had indicated that, including the Charter voir dire , this was the 11 th day where evidence was heard.

The Court noted that several factors had come into play and that if anyone had a “crystal ball” and had predicted that this would be a 10-day trial, it could have been scheduled after the Charter voir dire in June 2020 or even earlier for that length of time. [ 98 ] Trial – Day 10 – June 29, 2021 - On this trial date, Defence Counsel called Mr. Gregory Johnstone to be qualified as an expert and provide opinion evidence. At the outset, the Court questioned whether the Crown was contesting the qualification of Mr.

Johnstone as an expert in certain areas to provide opinion evidence to the court and whether it would be necessary to enter into a contested Mohan voir dire . [ 99 ] The Crown Attorney advised the Court that she had reviewed the proposed areas for which Defence Counsel sought to qualify Mr. Johnstone as an expert to provide opinion evidence.

She did not have any issue with most of the proposed areas, but did with respect to the second area dealing with the “absorption, distribution and elimination of the effects of drugs, including asthma drugs and inhalers on the human body.” The Crown Attorney indicated that, for the moment, she was contesting his qualification in that area. [ 100 ] As a result, Defence Counsel posed general qualification questions on direct examination and focused questions in relation to the area contested by the Crown. The Crown Attorney cross-examined Mr.

Johnstone in relation to those contested areas and the Court posed questions on the qualifications voir dire . The direct examination, cross-examination, and questions by the Court in relation to the qualifications voir dire took the entire morning and concluded at about 12:40 PM. [ 101 ] The submissions and discussions around the contested area of Mr. Johnstone’s qualifications to provide expert opinion evidence commenced when court resumed at about 1:50 PM. There was an extensive discussion with respect to the contested second area for which the defence sought to qualify Mr.

Johnstone as expert to provide opinion evidence. In the final analysis, the Court agreed with Defence Counsel, but noted that there may be objections by the Crown and that the Court also had a “gatekeeper” role to ensure that Mr. Johnstone remained within his “lane” of expertise in providing opinion evidence. [ 102 ] Although it was mid-afternoon at this point and the courtroom was becoming quite warm, the Court asked whether Mr. Johnstone wished to take a short break. Mr.

Johnstone said that he was “good to go”, so Defence Counsel commenced his direct examination, which continued until an afternoon break. [ 103 ] When court recommenced after the short break, the Court informed the parties that inquiries would be made with the Chief Judge’s office to see if some early trial continuation dates could be secured in this courtroom or a vacant courtroom. The Crown Attorney also undertook to do a review of her

schedule for the courtroom to see if cases would be resolved and make additional trial time available. The Court noted that, it would be preferable to continue with the direct examination of Mr. Johnstone and if possible dates were found, counsel would be notified by e-mail. [ 104 ] Defence Counsel continued with the direct examination Mr. Johnstone until a point in time where he indicated that he was now going to explore the specific details of his expert report.

Since it was close to the end of the day, everyone agreed that it was an appropriate place to stop for the day as Defence Counsel indicated that he would be moving to those key questions in relation to Mr. Johnstone’s opinion evidence. [ 105 ] Prior to concluding for the day, the Court and the parties returned to the issue of scheduling the timing and number of days needed to complete the trial. The Crown Attorney estimated that the direct examination and cross-examination of Mr.

Johnstone could be completed on the already scheduled date of October 19, 2021, and then the half-day for trial already scheduled for December 15, 2021 would probably be sufficient for the rebuttal evidence of Ms. Hackett. She also indicated that another half-day to one full day be scheduled for the closing submissions of counsel, as there would likely be lengthy submissions given the number of issues raised during the hearing of the evidence. [ 106 ] For his part, Defence Counsel also estimated that two more days would be needed to complete the trial evidence and then

schedule a date for the submissions of counsel. He indicated that he was considering a Jordan unreasonable delay Charter application, but also recognized that there had been Covid adjournments. He estimated that by scheduling three additional days, the parties would complete the cross-examination and re-examination of Mr. Johnstone, the submissions of counsel as well as some time for “other applications.” [ 107 ] Scheduled Trial – Day 11 – October 19, 2021 - Unfortunately, this full day for trial continuation and the completion of Mr.

Johnstone’s direct examination and cross-examination had to be cancelled at the last moment. Defence Counsel informed the Crown and the Court that Mr. Johnstone had undergone additional surgery on October 18, 2021. It was not a planned surgery. Since Mr.

Johnstone was scheduled to be the last of the defence witnesses, no other evidence could be called that day, with the result that this full day of trial time was lost due to the unforeseen medical issues of the defence expert witness. [ 108 ] Trial – Day 11 – December 15, 2021 – This date had originally been scheduled for a half-day trial continuation in the afternoon, on March 18, 2021, when it was being considered as a possible date for the closing submissions .

Although, the date had been set as a half-day trial continuation in the afternoon, it is evident from the transcripts of proceedings on December 15, 2021, that another case had been resolved and the parties were notified that the Court now had almost a full day, as this trial recommenced at about 10:35 AM. [ 109 ] However, due to the unexpected loss of the full day for trial on October 19, 2021, due to Mr. Johnstone’s medical issues arising at the last moment, the projected plan for December 15, 2021 to be used for rebuttal evidence by the Crown was not possible.

As a result, the trial continuation for December 15, 2021 was now projected to be for Mr. Johnstone’s direct examination and cross- examination by the Crown Attorney. [ 110 ] Based upon the previous estimations of time requirements by counsel which were made on June 29, 2021, when Mr. Johnstone was last in court, it was anticipated that his direct examination and cross-examination would be completed on December 15, 2021. On

December 15, 2021, Defence Counsel commenced his direct examination of Mr. Johnstone and with a short mid-morning break, it continued for the balance of the morning. [ 111 ] After the noon break, Defence Counsel resumed his direct examination of Mr. Johnstone and after several questions, the Crown Attorney raised an objection with respect to him providing expert opinion evidence in an area which had been contested by the Crown. After the Court dealt with the Crown Attorney’s objection, the direct examination of Mr.

Johnstone continued until about 3:00 PM, when Defence Counsel indicated that he had almost completed his direct examination, but since it was “quite warm” in the room, court recessed for a 15-minute break. [ 112 ] Upon returning from the short recess, Defence Counsel indicated that he and the Crown Attorney had met during the break to discuss how they would proceed for the balance of the day. Defence Counsel stated that he would like to finish his direct examination of Mr. Johnstone and was not far from doing so. However, he said that Mr.

Johnstone had mentioned during the short break that he was “getting tired” and, as a result, the parties had discussed adjourning after the direct examination was completed. [ 113 ] In addition, just after returning from the short recess, the Court noted that some proposed dates had been sent out to counsel for the trial continuation. The Crown Attorney indicated that a full day would be available on January 14, 2022, as the accused person was deceased. She added that January 31, 2022, had also opened up for the same reason.

The Crown Attorney also indicated that she was working very closely with her colleagues to determine if other cases were not proceeding or were likely to be resolved as possible trial continuation dates for this matter. [ 114 ] After hearing that there were a couple of available days for the trial continuation, the Court suggested that, rather than taking additional time at that point to confirm dates, Defence Counsel should complete his direct examination of Mr. Johnstone. The direct examination of Mr. Johnstone was completed at about 3:35 PM. [ 115 ] After Mr.

Johnstone’s direct examination was completed, there was some discussion as to whether the Crown Attorney should commence her cross-examination of Mr. Johnstone with the balance of time available that day. The Crown Attorney stated that she could start her cross-examination but preferred to speak to Ms. Hackett before doing so. [ 116 ] After hearing from both counsel, and given Mr. Johnstone’s early remark of “being tired,” Defence Counsel also noting that it was “extremely warm” in the courtroom when court resumed after the break and Mr.

Johnstone’s recent heart operation, the Court concluded that it would be appropriate to adjourn at that point. The Crown Attorney agreed that it would probably assist in streamlining her cross-examination of Mr. Johnstone on the next date. Mr. Johnstone stepped down from the witness stand at about 3:35 PM. [ 117 ] Although some court time could have been used for the initial questions of the Mr. Johnstone’s cross-examination, the Court stated that it was a priority to

schedule trial continuation dates at the earliest opportunity. The Court noted that possible half-day continuation dates on January 14 th and January 31, 2022, had been sent out to the parties. The Crown Attorney also noted that there was likely time available on March 9, 2022, but Defence Counsel indicated he would likely be out of the country at that time. [ 118 ] Based upon the two January 2022 dates being available, the Crown Attorney estimated that she could complete her cross- examination of Mr. Johnstone on January 14, 2022.

As for the January 31, 2022 date, the Crown Attorney said that it would likely be used for the rebuttal evidence with Ms. Hackett, which she had previously indicated that she would be calling. Thereafter, she estimated that only one more day would need to be scheduled for the closing submissions of counsel. [ 119 ] The Court also advised the parties that there were ongoing efforts by the scheduling clerk in the Chief Judge’s office to find additional trial dates for this matter and any possible dates would be forwarded to the parties.

The Court informed the parties that scheduling of trial continuation times for new cases and dealing with a backlog of cases already adjourned by Covid had impacted scheduling with new trials of a day or more and other trials were now being scheduled in this courtroom in January 2023. [ 120 ] Scheduled Trial – Day 12 – January 14, 2022 - On Thursday, January 13, 2022, the Provincial Court of Nova Scotia issued a statement on the Court’s website that due to the high Covid-19 case numbers in Nova Scotia and the ongoing situation with the Omicron variant, the Court had extended the suspension of in-person proceedings until Friday, January 28, 2022.

The suspension applied to all in- person proceedings in the Provincial Court with the exception of trials for individuals in custody or any matter deemed urgent or exceptional by the presiding judge and as operational requirements allowed. [ 121 ] The parties appeared virtually by telephone on January 14, 2022, in accordance with the Court’s statement suspending in-person proceedings. During the virtual appearance, the Court reiterated the rationale for the cancellation of the trial date and confirmed that the suspension of in-person proceedings would be until January 28, 2022.

The suspension of in person proceedings was expected to be re- evaluated by the Court on January 25, 2022. [ 122 ] Following the cancellation of the January 14, 2022, the Court confirmed that everyone was still available for the half-day continuation on January 31, 2022. Since that trial continuation date was only for half-day, the Court asked whether the Crown Attorney believed that her cross-examination of Mr. Johnstone could be completed on that date or additional trial time would be required. The Crown Attorney was “hopeful” that her cross-examination of Mr.

Johnstone could be completed on January 31, 2022, but also reminded the Court that she had previously stated that she would seek to call rebuttal evidence. [ 123 ] She suggested that two more days be scheduled – one to complete the evidence and the other for closing submissions . The Court noted that February 8 and 9, 2022 were intake days for the courtroom, but if the Court’s

schedule could be switched with another judge and a vacant courtroom and a clerk were available, it might be possible to continue on those dates. The Court undertook to check with the Chief Judge’s office to see whether all those “moving parts” on the Court’s side could be accommodated. [ 124 ] Defence Counsel indicated that he was not available on February 8, 2022, but he and his witness were available on February 9, 2022. The Crown Attorney indicated that she was available on both dates and would check with Ms. Hackett.

Defence Counsel also noted that, given the earlier statements by the Court that a further suspension of in-person court proceedings on January 31, 2022, would likely impact the possibility of a trial continuation on February 9, 2022. The Crown Attorney stated that she had been carefully looking

at upcoming dockets for the court and believed that trial time had also opened on March 8, 2022, but Defence Counsel had previously indicated that he would be out of town on that date. [ 125 ] Scheduled Trial – Day 12 – January 31, 2022 - On January 25, 2022, the Provincial Court of Nova Scotia issued a statement on the Court’s website that due to the ongoing situation with Covid 19 and the Omicron variant, the Court was extending the suspension of most in-person proceedings until Friday, February 11, 2022.

The Court indicated that the situation would be reassessed prior to February 11 th to determine whether it was safe to resume hearing more matters in-person. [ 126 ] As a result of the notice of the suspension of in-person proceedings, the parties appeared virtually by phone on January 31, 2022. Since the trial was not able to continue on this date, the Court confirmed that the Crown Attorney had recently advised the Court that a full day would be available on May 3, 2022.

On that date, she advised that the afternoon was already clear and a colleague at indicated that this matter could be “overbooked” in the morning as the other matter scheduled for that day was unlikely to proceed. [ 127 ] After hearing from counsel that Mr. Johnstone and Ms. Hackett were available for the cross-examination of Mr. Johnstone on May 3, 2022, the Court confirmed that full day for the trial continuation.

After doing so, the Court noted that, based upon what the Crown Attorney had previously stated, it appeared that two additional days would be required – one being for the completion of evidence and the other for the closing submissions. The Court also stated that the clerks would be looking at upcoming dockets, possible switches with another judge to go to a vacant courtroom to locate two additional days for the trial. [ 128 ] Trial – Day 12 – May 3, 2022 - The Court noted that the trial continuation was beginning at about 10:20 AM due to having dealt with some other previously scheduled matters at the outset.

However, the rest of the day and been cleared up for Mr. Johnstone’s cross- examination by the Crown Attorney and any re-examination by Defence Counsel. The Crown Attorney commenced her cross- examination and proceeded with her questions, after short break, for the rest of the morning and indicated that she had several more questions for Mr. Johnstone. [ 129 ] Prior to the noon hour break, the Crown Attorney indicated that she still had several additional questions for Mr. Johnstone, but there was a sentencing scheduled for 1 PM that day.

The Court had indicated that the sentencing should be adjourned but the Court also informed the parties that we would likely have to adjourn for the day around 2:15 PM for the Court to travel to Ottawa for a previously scheduled national commitment. [ 130 ] When court resumed at about 1 PM, the Crown Attorney continued her cross-examination of Mr. Johnstone. Shortly thereafter, she indicated that she would be asking him to perform a series of calculations to estimate Mr.

Yeo’s Blood Alcohol Concentrations (BAC) at different points of time on June 10, 2018 using different rates of elimination of alcohol based upon the evidence provided by Mr. Yeo's alcohol consumption on the day before the accident, taking into account the starting point of the first drink to his last drink, the amount of alcohol consumed and the percentage of alcohol by volume in those drinks. [ 131 ] The Crown Attorney had indicated that there may have been some differences between the trial evidence and the information previously utilized by Mr. Johnstone in preparing his report.

For those reasons, the Crown Attorney asked Mr. Johnstone to do those calculations in court. Mr. Johnstone replied that it might take time and added: “I'd rather do that on another day, have time to do it ... you give me all the information. I'll go away and do it, and the next time we come back I'll give you the numbers. You're asking me to start from scratch.” [ 132 ] Following Mr.

Johnstone’s remark with respect to the work involved in providing those blood-alcohol concentration (BAC) calculations at certain points of time with different rates of elimination, the Court had a discussion with counsel with respect to Mr. Johnstone’s proposed manner of proceeding. It was agreed that the Crown Attorney would send information which stated a series of assumptions, based upon the trial evidence and also forward other relevant information to be able to perform the requested calculations. It was agreed that the Crown Attorney’s “homework” would be forwarded to Mr. Johnstone through Defence Counsel.

Mr. Johnstone was to perform his own analysis and estimates prior to the next court date and bring his calculations to court the next day for further cross-examination by the Crown Attorney. [ 133 ] The Court noted that this approach made sense as Mr. Johnstone had said that each of the specific calculations would take time to calculate “longhand” and he preferred to do them at home and return on another day. In addition, the Crown Attorney stated that most of the remaining cross-examination related to those calculations of the various scenarios. The parties agreed that it would be helpful for Mr.

Johnstone to provide those calculations to counsel prior to the next court date. [ 134 ] Once Mr. Johnstone stepped down as a witness, at about 1:40 PM, there was a discussion with respect to scheduling the continuation of his cross-examination, any re-examination, and the rebuttal evidence of Ms. Hackett. The court clerk offered a half day that was available on July 26 th or a full day on July 27, 2022, as possible dates for the trial continuation. The Crown Attorney and Defence Counsel, as well as Ms. Hackett were available on both days.

Defence Counsel’s preference was to book the full day on July 27, 2022, if Mr. Johnstone was available. Mr. Johnstone stated that he would advise Defence Counsel. [ 135 ] The Crown Attorney indicated that her cross-examination of Mr. Johnstone would be completed the next day. Then, she indicated that it would be preferable to have a minimum of a month before the date of the rebuttal evidence planned by the Crown as Ms. Hackett would be asked to perform a series of calculations and prepare a report for presentation at that time. [ 136 ] A status date was scheduled for May 10, 2022, and Mr.

Johnstone confirmed his availability to continue his cross-examination on the next full day confirmed for the trial continuation on July 27, 2022. [ 137 ] Trial – Day 13 – July 27, 2022 – Defence Case Closed - At the outset of the proceedings, there was a brief discussion of trial continuation dates and the fact that Ms. Hackett could appear in person on the date scheduled for rebuttal evidence.

Defence Counsel also indicated that the parties were hoping to have transcripts of all dates when evidence was heard, as the Court had indicated that we were now getting close to what the Supreme Court of Canada had referred to as the “ anticipated end of the trial ” where the closing submissions would be made.

[ 138 ] Defence Counsel also indicated that they were entertaining a Jordan application. In response, the Crown Attorney asked when formal notice would be provided to the Crown and the Court and when Defence Counsel anticipated that his brief would be filed to provide the Crown with adequate time to reply. [ 139 ] At that point, the Court and the parties discussed scheduling dates for the Crown’s rebuttal evidence and a potential date for the Jordan application. The dates of October 21, 2022 and November 25, 2022 were mentioned.

The Crown Attorney added that the cases scheduled for December 13, 2022 and February 1, 2023 would likely not be proceeding, so they could be considered for trial continuation, the Jordan application or closing submissions in the trial. [ 140 ] After a short break, the Court confirmed that the possible date on October 21, 2022, was not available due to a previously scheduled French trial matter in Antigonish on that date.

Then, the Court scheduled the status date on September 12, 2022 to verify whether the proposed dates of November 25, 2022, December 13, 2022 and February 1, 2023 would be confirmed as trial continuation dates. [ 141 ] Following the discussion regarding upcoming dates, the cross-examination of Mr. Johnstone continued. The Court advised the parties that a scheduled afternoon matter would be adjourned, so they now had almost a full day to complete Mr. Johnstone’s evidence. [ 142 ] In the afternoon, the Crown Attorney continued and completed her cross-examination of Mr. Johnstone.

Then, Defence Counsel asked questions on re-examination and the Court asked a few questions of Mr. Johnstone, completing his evidence at about 3:10 PM on July 27, 2022. Immediately thereafter, Defence Counsel closed his case, and he tendered his exhibits. [ 143 ] Prior to adjourning for the day, the Crown Attorney confirmed that she would be calling Ms. Hackett in rebuttal and that she would ask her to prepare a report, based upon the evidence called during the trial. She indicated that she wanted to have the report forwarded to Defence Counsel at least one month before the next trial continuation date.

The Court noted that November 21, 2022 could be a date for the rebuttal evidence, if everyone was available. A status update was scheduled for that purpose on September 12, 2022 and court adjourned for the day. [ 144 ] On the September 12, 2022 status update before Chief Judge Williams, it was confirmed that November 21, 2022 would be the continuation date for the rebuttal evidence of the Crown.

The oral submissions on the proposed Jordan application would be made on December 13, 2022, and February 1, 2023 was confirmed for the trial continuation, possibly for the Jordan application decision. [ 145 ] Trial – Day 14 – November 21, 2022 – Crown Rebuttal - On this date, the Crown Attorney who had been handling this trial from the outset was not available to conduct the Crown’s rebuttal evidence of Ms. Josette Hackett. However, a Crown colleague was able to take over the conduct of the direct examination of Ms.

Hackett on short notice and this trial continuation date was not lost. [ 146 ] Prior to her testimony in court, as outlined on the previous day, Ms. Hackett had provided a supplementary report to the Crown Attorney which was forwarded to Defence Counsel and filed as an Exhibit. The Crown Attorney completed her direct examination of Ms. Hackett and Defence Counsel completed his cross-examination of Ms.

Hackett on November 21, 2022. [ 147 ] In addition, on November 21, 2022, the Court confirmed that the oral submissions on the Jordan application which was to be filed by Defence Counsel would be heard on December 13, 2022. The Court also noted that the February 1, 2023, which could be a full day for the trial continuation, was also confirmed as the anticipated date for the decision on the Jordan application. [ 148 ] At the same time, the Court confirmed that the formal notice of the Jordan Application and Defence Counsel’s brief were to be filed and served on the Crown by November 30, 2022.

The Crown Reply was to be filed and served by December 12, 2022. In addition, the Court was holding June 1, 2023 and June 15, 2023, as the possible dates for the closing arguments in the trial proper, in the event that the Jordan application was

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