Nicholas Ashton Mullen Applicant v. Her Majesty the Queen Respondent APPLICATION TO STAY PROCEEDINGS FOR DELAY PURSUANT TO S. 11(B) OF THE CHARTER Restriction on Publication: S. 517 CC Judge: The Honourable Justice Pierre L. Muise, 2020 NSSC 163

SUPREME COURT OF Nova Scotia Citation: R. v. Mullen , 2020 NSSC 163 Date: 20200527 Docket: Yarmouth , No. 490556 Registry: Yarmouth Between: Nicholas Ashton Mullen Applicant v. Her Majesty the Queen Respondent APPLICATION TO STAY PROCEEDINGS FOR DELAY PURSUANT TO S. 11(

B) OF THE CHARTER Restriction on Publication: S. 517 CC Judge: The Honourable Justice Pierre L. Muise Heard: February 26, 2020, in Yarmouth, Nova Scotia Counsel: Philip Star, Q.C, and Kiel Mercer for the Applicant Robert Morrison and Marc Njoh, for the Respondent S.517(1): At show cause hearing, the Judge has made an order directing that the evidence taken, the information given or the representations made and the reasons if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way. Oral Decision Rendered February 26, 2020 INTRODUCTION [ 1 ] Mr.

Mullen was charged with multiple offences arising from an incident on November 4, 2017 during which he shot the complainant, Jonathan Melanson, in the leg with a firearm, resulting in a wound which required his leg to be amputated. The original Information was laid the same day. Disclosure was not substantially completed until January or February of 2018. The further medical report, which the Defence had been requesting repeatedly, was not disclosed until December 2018. Following receipt of that report, there were adjournments until July 2019 to allow resolution discussions.

The matter came before the Supreme Court by way of direct indictment filed July 30, 2019, with a first appearance in August 2019. The trial is scheduled to finish April 1, 2020. [ 2 ] The Accused brings this application pursuant to s. 11(

b) of the Canadian Charter of Rights and Freedoms to stay the charges against him based on an alleged denial of his right to be tried within a reasonable time. [ 3 ] I am rendering my decision orally. Should a written version be released, I reserve the right to edit it for grammar, structure, complete citations and organization, without changing the reasoning or result. [ 4 ] In the well-known case of R v. Jordan , 2016 SCC 27 , the Supreme Court of Canada set out a new framework for analyzing s. 11(

b) claims of unreasonable delay. It summarized that new framework at para 105 as follows: • There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling. • Once the presumptive ceiling is exceeded , the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably

unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable. • Below the presumptive ceiling , in clear cases, the defence may show that the delay is unreasonable.

To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. [ 5 ] This matter is in a superior court. As the parties agree, the presumptive ceiling is 30 months. [ 6 ] They both state in their briefs that the total delay is 28 months and 28 days. Despite that, the Defence submits the Crown has left out one day, stating it is 879 days instead of 880 as the Defence contends.

The differing total appears to stem from the Crown treating the day the information was laid as day 0, not day 1. I agree with the Crown approach. The total delay from the laying of the first Information on Nov 4, 2017 to the last day scheduled for trial, April 1, 2020 is 28 months as of March 4, 2020, plus 28 days to April 1, 2020. That is a total of 28 months and 28 days, as both parties stated in their briefs. [ 7 ] As agreed by the parties, no time is to be added for deliberation time: R v Brown , 2018 NSCA 62 . [ 8 ] The total delay is under the presumptive ceiling.

The Defence is arguing that even the net delay is nevertheless unreasonable in the circumstances of this case. [ 9 ] There is a dispute in relation to the net delay to be used to assess whether the matter is taking markedly longer than it should. [ 10 ] They agree that the Defence explicitly waived delay from April 23, 2019 to July 30, 2019.

That is 3 months and 7 days. [ 11 ] They disagree on whether any other timeframe should be deducted as delay implicitly waived by the defence. [ 12 ] They disagree on what should be deducted as delay caused by discrete exceptional events. [ 13 ] The Crown further argues that the complexity of the case justifies the delay. ISSUES [ 14 ] The remaining issues to be decided in determining whether a stay should be granted are: 1. What, if any, delay did the Defence implicitly waive? 2. What, if any, delay attributable to discrete exceptional events should be deducted? 3.

Has the Defence taken meaningful steps to expedite the proceedings? 4. Is the matter taking markedly longer than it should? ANALYSIS ISSUE 1: What, if any, delay did the Defence implicitly waive? [ 15 ] On February 19, 2019, the Defence, jointly with the Crown, asked the Provincial Court to adjourn election and plea to April 23, 2019 for the purpose of engaging in resolution discussions. The Defence stated the record should show it “not so much as an 11(

b) waiver, but a mutual request … so I think it can be read into that”. [ 16 ] The Crown interprets that as a concession that a waiver could be read into the mutual request and argues the adjournment period should be deducted as having been explicitly waived. [ 17 ] The Defence argued in its brief that those words clearly communicate that it was not waiving delay, and it was not a clear and unequivocal waiver. [ 18 ] Jordan , at paragraph 61 noted that, though defence waiver can be implicit, it must be “clear and unequivocal”. [ 19 ] At paragraph 191 it stated: “[W]hen the accused consents to a date for trial offered by the court or to an adjournment sought by the Crown, that consent, without more, does not amount to waiver.

The onus is on the Crown to demonstrate that this period is waived, that is, that the accused’s conduct reveals something more than “mere acquiescence in the inevitable” and that it meets the high bar of being clear, unequivocal, and informed acceptance that the period of time will not count against the state .” [ 20 ] The Defence had, on December 13, 2018, received the medical report it was awaiting from the Crown. That disclosure date may have made it impracticable for the Defence to make its election and/or plea on the December 17, 2018 appearance.

However, by the next court date, February 19, 2019, there had been plenty of time to properly review the report and assess its impact on what election and/or plea should be made. The fact that the parties wished to engage in resolution discussions was not an obstacle to election and plea, if indeed one was required, given that it had already been done in relation to the first Information that was filed. [ 21 ] Alternatively, a preliminary inquiry date could reasonably have been secured far enough in the future to allow discussions, and still released in time to be used for other matters, if this matter resolved.

Although, ideally, it is preferable not to

schedule court time if something has a realistic chance of resolution, the circumstances of the case at hand make it such that, assuming a desire to expedite

proceedings, a more aggressive approach was reasonably warranted. Further, particularly in Provincial Court, multiple matters are usually set for hearing the same day with the expectation that many of them will be resolved. [ 22 ] Therefore, the Crown has shown that the Defence did more than acquiesce in the inevitable. It did, as it said, mutually request the adjournment. [ 23 ] I also agree with the Crown that the defence statement, that it was not so much a waiver as a mutual request so it thought it could be read into that, makes it such that the Defence was implicitly waiving the adjourned time period.

The Defence conceded during the hearing that is not illogical. [ 24 ] However, it argued that that the Jordan timelines include time for plea negotiations, so a mutual request would not necessarily mean a waiver and the time should not be deducted. As indicated, resolution discussions can reasonably occur amongst other steps. In the case at hand, the charges had been laid for over 1 year and 2 months, and the request for an adjournment was not due to anything the Crown had done or not done.

It was because the Defence wanted to put matters on hold to engage in resolution discussions. [ 25 ] In those circumstances, the mutual request to adjourn, particularly combined with the comment that the defence thought a waiver could be read into that, implies, and almost explicitly confirms, a waiver. [ 26 ] Therefore, Crown has shown that the defence conduct “meets the high bar of being clear, unequivocal, and informed acceptance that the period of time will not count against the state”. [ 27 ] In these circumstances, I find it has been shown that the defence implicitly waived that period and I will deduct it. [ 28 ] February 19 to April 23, 2019, is a further 2 months and 4 days to deduct.

ISSUE 2: What, if any, delay attributable to discrete exceptional events should be deducted? [ 29 ] The majority in Jordan , at paragraph 69 , stated: “Exceptional circumstances 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.” [ 30 ] At paragraph 72, it notes that a medical emergency on the part of an important witness would generally qualify. [ 31 ] At paragraph 75, it states: “The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.

Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events … . Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted … .” [ 32 ] The Crown highlights that the complainant was hospitalized and receiving medical treatment for many months.

The fact he was unable to attend court was one of the reasons the January 12, 2018 preliminary inquiry was adjourned. It wrote, in its brief, that he was sufficiently recovered by the summer of 2018. It concedes that no alternate preliminary inquiry date was set, making it difficult to assess the delay attributable to the complainant’s incapacity.

It suggests deducting 60 to 90 days for that discrete event. [ 33 ] The Defence argues that, because the medical report opining on the direction the bullet entered the complainant’s leg was not available, it made no difference that the complainant was unable to testify as the preliminary inquiry could not have proceeded in any event. It highlighted that the accused’s position was that the complainant was coming at him with a rake when he shot the complainant. So, evidence of the direction of entry was very important for the preliminary inquiry.

Without it, the preliminary inquiry could not proceed, so the period of the complainant’s unavailability should not be deducted. [ 34 ] The complainant being unable to attend court to testify because of injuries suffered as a result of the alleged offences is not something the Crown could reasonably avoid or remedy. One might consider arranging video-link evidence as a possible remedy. However, if he is not well enough to come to court, one could not reasonably expect him to be well enough to go somewhere to testify by video-link.

As such it meets the definition of exceptional circumstance. [ 35 ] However, I agree with the Defence that, since the preliminary inquiry could not proceed anyhow because insufficient Crown disclosure had been made, the unavailability of the complainant changes nothing and does not explain defects in disclosure. As such no time should be deducted for it. [ 36 ] Even if it was proper to deduct some time, the Crown has not shown how much time should be deducted. [ 37 ] January 12, 2018 was the first preliminary inquiry date set.

The complainant was released from the hospital in December 2017 and was present in Court during the Bail Review hearing on March 6, 2018. Though he was in crutches, he appeared fit to testify. He nodded in agreement when Mr. Star praised him for not being mad at the accused for what had happened, despite having lost a leg. [ 38 ] Therefore, at the latest at some point between January 12 and March 6, 2018, he would have been able to testify. [ 39 ] The precise point is unknown.

Correspondence, from the Defence to the Crown, dated January 10, 2018, states that the January 12 preliminary inquiry was adjourned on January 9 “due to confusion with respect to the availability of the alleged victim as well as further disclosure” the Crown was attempting to obtain. That suggests that he could have been available January 12 or shortly after.

[ 40 ] In the circumstances, I will not deduct any amount for this discrete exceptional circumstance. [ 41 ] The Crown’s ability to control when it received disclosure will be discussed when assessing whether the case took markedly longer than it should have.

ISSUE 3: Has the Defence taken meaningful steps to expedite the proceedings? [ 42 ] The majority in Jordan , at paragraphs 84 and 85 outlined what the defence must show to establish the requisite meaningful steps as follows: “To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” ( Morin , at p. 802).

Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form. To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.

While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11 (

b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly. [ 43 ] The majority in R. v.

K.J.M. , 2019 SCC 55 , at paragraph 83 , after discussing, at paragraph 82, the Crown’s duty to be proactive in moving matters along, stated the following: In short, if the defence hopes to satisfy the “meaningful steps” test set out in Jordan , it must engage in proactive conduct throughout and show that the accused is committed to having the case tried as quickly as possible. Resigned acquiescence will not do.” [ 44 ] The Defence did make meaningful and sustained efforts to expedite the proceedings from November 4, 2017 to December 17, 2018.

On November 20, 2017 it elected trial by judge and jury on the Information sworn November 4 and had the preliminary inquiry scheduled to Jan 12, 2018. December 12, 2017, a focus hearing was set for January 9, 2018. On that day, the January 12 preliminary inquiry was adjourned for the reasons noted already, including ongoing disclosure issues. There were multiple further appearances in Provincial Court, during which the defence stated it was still waiting for requested medical disclosure, and the Crown requested adjournments because it was awaiting it.

They included January 22, February 5, March 26, April 24, June 5, July 16, September 25, October 15, and October 29, 2018. The return date set on October 29 was December 17, 2018. [ 45 ] The Defence received the medical disclosure/ medical examiner’s report it was waiting for on December 13, having occasion to review it on December 14, 2018. It, quite reasonably, needed time to review it before entering election and/or plea on the new Information. So, it properly requested an adjournment. [ 46 ] However, the length of the adjournment requested did not indicate an effort to expedite the proceedings.

It requested a date in February, specifically the February 19 arraignment day, even though February 4 was also an available arraignment day in February. [ 47 ] Its actions from then, until July 30, 2019, indicate that the Defence was not committed to having the case tried as quickly as possible. [ 48 ] As previously indicated, on February 19, 2019, it agreed to adjourn to April 23, 2019, over 2 months, to engage in resolution discussions.

It could at least have made its election and plea and set a date for a preliminary inquiry as it had done very quickly in relation to the first information that was sworn, at a time when the Crown was still gathering disclosure and had an incapacitated complainant. [ 49 ] Then, on April 23, 2019, it requested an adjournment to the end of July 2019, albeit accompanied by an 11(

b) waiver, again for further resolution discussions. That was over 3 months away. [ 50 ] Meanwhile, the correspondence indicates that the Defence did little to actively pursue resolution discussions. On February 20, 2019, it wrote the Crown stating it would see whether it would make a counter proposal.

An email on April 22, to the Crown, confirms a discussion on the preceding Thursday and that the matter would be set over one more time to see if there was room for a resolution. [ 51 ] Then it was the Crown, who, on July 12, 2019, expressed to the Defence it was very concerned about the delay and had requested approval for a direct indictment. It referred to the defence’s last letter, in which indicated there may be a counter proposal (i.e. the February 20 letter).

At that point the defence responded, the next day, that the matter was unlikely to resolve. [ 52 ] There is no indication that the Defence put the Crown on notice that delay was becoming a problem until December 19, 2019 when, in court, it advised it would be making an 11(

b) application. [ 53 ] The Direct indictment was filed July 30, 2019, with the first appearance in Supreme Court occurring on August 8, 2019. At that point, it was set to September 5 to examine election options. Since then, both parties have been taking meaningful steps to move the matter along. [ 54 ] Adjournments to engage in resolution discussions are not inherently unreasonable. However, in this case the defence let 5 or 6 months go by without making more than very limited efforts towards a resolution.

I appreciate that counsel are busy and it is easy for the time to slip away, with the adjourned date arriving before you know it. However, relative inaction during such periods of adjournment

militate against a finding that meaningful steps were taken to move the matter along. [ 55 ] The defence conduct in the period from late December 2018 to July 13, 2019 does not show proactive conduct, nor that it was committed to having the case tried as quickly as possible. [ 56 ] In the circumstances, I cannot find that the Defence has shown that it has taken meaningful, sustained steps throughout to expedite the proceedings. ISSUE 4: Is the matter taking markedly longer than it should? [ 57 ] This is the second point the Defence must show to establish unreasonable delay below the ceiling.

The majority in Jordan , at paragraphs 87 to 91 , made the following comments in relation to this step. “[T]he defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.

The reasonable time requirements of the case will increase proportionally to a case’s complexity. … In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection. Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation.

Trial judges should not parse each day or month, as has been the common practice since Morin , to determine whether each step was reasonably required.

Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. …” [ 58 ] As noted at para 70 of Jordan , where problems obtain in a case, the Crown must show it took reasonable steps to avoid and address the problems, even if those steps were not ultimately successful. [ 59 ] In R v K.J.M. , supra , the majority, at paragraphs 81 and 82, highlighted that failure by the Crown to take meaningful steps to expedite the proceedings is a factor to consider in determining whether the case is taking markedly longer than it should. [ 60 ] Further guidance was provided in R v Bulhosen , 2019 ONCA 600 , where the Court emphasized the importance of the Crown having a plan to manage the case from the early stages. [ 61 ] The net time it is taking the matter in the case at hand to get to trial completion is 23 months and 17 days, or about 2 years. [ 62 ] The Accused in the case at hand was in custody from November 2017 to early March 2018.

That augmented the importance of taking steps to expedite the proceedings. However, by early March 2018, the Accused had been released following a bail review, thus returning the case to an ordinary level of concern for expeditiousness. [ 63 ] The main circumstances inconsistent with such meaningful steps relates to disclosure, particularly of the medical examiner’s report, which did not occur until more than 13 months after the initial Information was sworn. [ 64 ] The Crown explained the disclosure delay as follows. [ 65 ] Disclosure was voluminous, including many medical records.

It wrote in its brief that this disclosure was only substantially obtained by the Crown prosecutors in April 2018. However, it noted, at the hearing, that that was based upon the materials it had at its office.

After seeing the rest of the materials submitted in this matter, at the hearing, it conceded it would have been in January or February 2018. [ 66 ] January or February would be the earliest it could be expected, as the Complainant was only released from the hospital in December and would, more likely than not, have had follow up appointments. [ 67 ] A letter from the Crown to the Defence, dated February 1, 2018, states that a CD of medical records from the QEII had been received, as well as printed medical records.

So, it appears a large part of the medical records had been received then. [ 68 ] It is only in April that Mr. Morrison and Mr. MacFarlane Njoh were the Crown Attorneys specifically assigned to the file. Before that, Dell Wickens, QC was handling it. [ 69 ] That cannot excuse delay. The Crown has an obligation to supply the resources required to reasonably move matters forward. [ 70 ] Having said that, even if they had been specifically assigned in early March, after Mr.

Wickens finished the Bail Review on behalf of the Crown, they would still have to have waded through the voluminous medical reports before determining what, if any, further medical opinion was required. [ 71 ] The Crown indicates that is the precise assessment it conducted. It reviewed the voluminous medical records that had been

received. It noted the treating doctors had expressed an opinion about the nature of the wounds. However, they did not have the required expertise to give a definite opinion on whether particularl wounds were bullet entrance or exit wounds, an important point considering the defence is advancing self-defence. On that basis, it was determined that an opinion should be sought from the Nova Scotia Medical Examiner’s Office. Then approval had to be obtained from the Chief Crown.

That approval was obtained. [ 72 ] An email dated May 14, 2018, from Senior Crown Attorney Robert Morrison to Matthew Bowes, Chief Medical Examiner, states that he spoke to Sean in Dr. Bowes’ office on Friday (ie. May 11) after a few weeks of playing phone tag. The email adds that Sean stated the Office would provide an expert opinion in the R v Mullen file.

That indicates the Crown contacted the Medical Examiner’s Office sometime in mid to late April to get a report. [ 73 ] That is somewhat confirmed in the letter from the Defence to the Crown, dated April 25, 2018, in which it notes that the Crown indicated it would be providing a Medical Examiner’s Report on exit and entrance wounds. [ 74 ] In the circumstances, it is reasonable to expect the Crown to have gone through the voluminous medical records enough, by mid-March 2018, to determine what additional report was required, if any. [ 75 ] Then, once a determination was made that a report would be required there was some difficulty in locating an appropriate person to prepare it.

The Medical Examiner’s Office has previously only handled fatalities. Therefore, it did not immediately appear as an option, and, as was alluded to, the office did not automatically accept the request. [ 76 ] Therefore, the Crown only let the matter drag about 1 month longer than reasonably necessary before requesting a report from the Medical Examiner. [ 77 ] That delay estimate is consistent with the letter of March 29, 2018 from the Defence to Crown Attorney Wickens, which confirms that, on March 26, 2018, Mr. Wickens told the Defence that Cpl.

Gosling had indicated they hoped to get a “full medical report within the next 1 – 2 weeks”. Though that is clearly overly ambitious, it shows the search for such a report would have been on, even when Mr. Wickens was still at least somewhat dealing with the file. [ 78 ] Appropriate follow-up steps were continued until the Medical Examiners’ Office confirmed it would prepare the report. [ 79 ] The Defence argues that its January 2018 request for such a report ought to have caused the Crown to request one sooner.

The Defence’s letter of January 10, 2018 to the Crown requests “an appropriate Medical Report from one or more of the doctors and in particular, outlining the nature of the gunshot wound suffered by Mr. Melanson including the entry point of the bullet (and whether it exited Mr. Melanson’s body)”. [ 80 ] The Crown did get such a report from “the doctors”, ie. the treating doctors. It is only upon reviewing those reports that it concluded those doctors did not have the expertise required to opine on the entry and exit points.

There is no indication the Crown ought to have known that point sooner. [ 81 ] I digress to note that I agree with the Defence that the Crown knew, at least as early as December 29, 2017, of the importance of an opinion regarding entry and exit of the bullet. It was mentioned in multiple correspondence, both from Crown and Defence, from December 29, 2017 to February 1, 2018. [ 82 ] However, as stated by Mr. Morrison, that type of information is commonly in the regular medical reports.

In the case at hand, when those reports were reviewed, the Crown noted that they expressed significant uncertainty and lack of expertise regarding their opinion on that point, thus signalling the need for a separate opinion. [ 83 ] The May 14 email, from Mr. Morrison to Dr. Bowes, gave a brief description of the matter and of the opinion sought, and by copy to a Crown assistant asked that copies of all medical records and photos of injuries be sent to Dr. Bowes right away. [ 84 ] May 15, Dr. Bowes advised in writing he would take the case. Mr.

Morrison responded the same day that the materials should be sent by courier that day. [ 85 ] September 21, 2018, Mr. Morrison sent Dr. Bowes an email asking when the opinion might be done, stating “Defence counsel keeps asking for it, otherwise I wouldn’t bug you as I know you are busy.” That suggests that the Crown was not taking steps to move the opinion along of its own initiative. [ 86 ] Having said that, it had only been 4 months since Dr. Bowes confirmed he would prepare the opinion. In addition, some of those months were summer months when it is common for people to take vacations.

For those reasons, I cannot say that the Crown acted unreasonably in not following up with Dr. Bowes sooner. [ 87 ] On October12, 2018, Dr. Bowes responded that he was working on the opinion and would let Mr. Morrison know at the end of the day. [ 88 ] October 16, 2018, Dr. Bowes was having issues opening photos on a disc. That issue was resolved relatively quickly by Sgt. Wentzell, of the New Minas Forensic Identification Section, putting the problematic images on another disc for him. [ 89 ] The opinion was ultimately provided in December 2018. [ 90 ] In a January 31, 2020 email, Dr. Bowes endorsed Mr.

Morrison’s view that 6 months to get such a report was not unusual. That is somewhat inconsistent with the information in the letter dated July 19, 2018 from the Defence to the Crown. It indicates the Crown had stated it hoped to receive the report by September 2018. It is also somewhat inconsistent with Dr. Bowes’ email of September 21, 2018 to Mr. Morrison, stating: “I will try to have it done next week. At least I will give you a more accurate timeline.”

[ 91 ] However, as conceded by the Defence, no one really knew how long it would take. [ 92 ] Contrary to the Defence’s argument, I do not find 6 months to be unusual or unreasonable in the circumstances. In addition to the circumstances already described, there was the added fact that this was the first time the Medical Examiner’s Office had prepared a report in relation to an alleged victim that was still living. As such, they had to go by photos and medical records. The complainant’s leg had been amputated. That made an observation of the complainant’s body fruitless.

The change in process would be likely to make the report take longer. [ 93 ] With a late March request date, that would have brought the delivery date to late-September. [ 94 ] However, the December delivery date in the case at hand was a 7-month delivery delay.

That was also not unreasonable, considering some of the intervening period was during the summer months and the novelty of the report for the Medical Examiner. [ 95 ] It is important to highlight that the Medical Examiner’s Office is not within the control of the Police, nor of the Public Prosecution Service, unlike experts that are with a police force, for instance. It would not have been reasonable for the Crown to seek out another expert at the point where the delivery of the report was being delayed.

As such, the Crown did not fail to take reasonable steps to avoid the delay in obtaining the opinion. [ 96 ] The report would, more likely than not, have taken 7 months even if requested in late March 2018. [ 97 ] Therefore, a more realistic delivery date, if requested when it reasonably could have been, would be the end of October 2018. It was delivered early December 2018, only slightly more than one month later. [ 98 ] Immediately after the Defence received the opinion of Dr. Bowes is when it stopped taking measures to expedite the proceedings.

It sought adjournments to allow resolution discussions; but, did little to advance those discussions. It left the Crown with a suggestion of a pending counterproposal, but never did provide one, even 5 months later when the Crown asked about the counterproposal and expressed its concerns about delay. It merely stated there was no chance of resolution. [ 99 ] Then, on July 30, 2019, the Crown preferred a direct indictment to prevent the matter from being stalled any further.

Both parties have been taking steps to expedite the matter since. [ 100 ] The Crown did not act unreasonably in agreeing to an adjournment to allow defence time to submit a counterproposal, particularly given that it had an explicit waiver for the second and lengthier adjournment. It could reasonably expect the Defence would take advantage of the opportunity to do so. [ 101 ] As stated, in the circumstances, it would not be reasonable to expect the Medical Examiner’s report to be ready any earlier than late-October 2018.

The Crown could not reasonably procure an earlier delivery. [ 102 ] Considering that the report was required for the preliminary inquiry and the local delay in scheduling preliminary inquiries in the local Provincial Court, the preliminary inquiry could be expected to occur in or about January 2019. [ 103 ] Then, considering the usual time required locally to complete a trial once the matter is transferred to Supreme Court, a trial date ending in February 2020 would commonly be expected. [ 104 ] The Defence argued that since there was a direct indictment and no preliminary inquiry, the matter could have been completed in 9 to 18 months.

That ignores the fact the direct indictment was only filed July 30, 2019, almost 1 year and 9 months after the original Information was laid, in response to the Defence having let the proceedings stall from February to July 2019, without taking any meaningful steps towards resolution. [ 105 ] Considering these factors, a trial date ending April 1, 2020 is not markedly longer than the matter should take. CONCLUSION [ 106 ] In light of my determinations on each of these issues, the Defence has failed to establish unreasonable delay and I dismiss its stay application. ___________________________ Pierre Muise, J.