R v Madill

R. v. Madill

2019 ONCJ 19
Ontario Court of Justice — Justice J.L. Broderick | January 16, 2019

Background

In August 2015, Gord Madill was building a single-storey bungalow on his property in Trent Hills, Ontario. He hired Barry Gummer Renovations to do the framing and install windows. On August 6, 2015, Gummer's employee Randy Morrow fell from a ladder while working on the house and landed head-first on the ground. The fall left Morrow permanently paralyzed from the chest down.

Nearly nine months later, on May 6, 2016, Madill was charged under sections 23(1)(a) and 23(1)(b) of the Occupational Health and Safety Act. The case dragged through the courts for over two years. When it finally went to trial on June 19, 2017, the Crown suddenly disclosed a Notice of Project (NOP) that Madill had filed after the accident — just six days before trial. Defence counsel objected that this was a "compelled statement" and needed time to file a Charter application. The Crown insisted on proper notice requirements and demanded an adjournment. The trial was postponed for over six months until January 4, 2018, where Madill was convicted on both charges and then appealed on the basis that his Charter right to be tried within a reasonable time had been violated.

Issues

1. How should "total delay" be calculated under the Jordan framework — from charge to end of evidence, or from charge to verdict?
2. Was the six-month adjournment from June 2017 to January 2018 properly characterized as "defence delay"?

The Jordan Framework and Calculating Delay

Under R. v. Jordan, provincial offence cases have a presumptive ceiling of 18 months from charge to trial completion. The Justice of the Peace had calculated total delay as 19 months and 29 days, ending when evidence and argument concluded. But Justice Broderick found this was wrong — total delay must be calculated to the "actual or anticipated end of trial," which means the verdict, not just the end of evidence.

The appeal court explained that while a matter is under reserve, "there remains uncertainty for the accused person in terms of the outcome of the proceedings." An accused person's stress and stigma don't end when the lawyers stop talking — they end when the judge delivers the verdict. Properly calculated, the total delay was 738 days (24 months, 8 days) from May 6, 2016 to May 24, 2018.

The Crown's Adjournment Demand Backfires

The real issue was the six-month adjournment from June 19, 2017 to January 4, 2018. The Justice of the Peace had called this "defence delay" and deducted it from the total. But Justice Broderick found this characterization completely wrong. When the Crown disclosed the NOP just six days before trial, defence counsel said he was "content to proceed" and "very worried given the Jordan requirements." It was the Crown who insisted that proper Charter application notice was required and that "an adjournment of this trial" was "the appropriate remedy."

The court noted that there were other solutions available — the NOP could have been marked as an exhibit with admissibility argued later, allowing the trial to continue. Instead, "the adjournment was requested and granted, with no consideration of other solutions which would have made effective use of court time and reduced delay." Defence counsel was the only participant who wanted to proceed and expressed concern about delay.

Key Takeaway

When the Crown creates delay through their own procedural demands, they can't later blame the defence for it.

After subtracting only the 90 days for legitimate exceptional circumstances, the net delay was 21 months and 16 days — well over the 18-month ceiling. The Crown couldn't justify this as reasonable, so Madill's convictions were quashed and a stay was entered on both charges.