C. Breault

Following a conviction for sexual assault at a re-trial, the accused brought an application for a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay from the order for a new trial to the anticipated sentencing date was over 42 months.

The court deducted significant periods of defence delay, largely attributed to the late retention and poor scheduling of a defence sleep expert, as well as exceptional circumstances including counsel illness and unavoidable scheduling conflicts.

The net delay was calculated at 13.5 months, well below the 18-month presumptive ceiling.

The court found the defence failed to take meaningful steps to expedite the proceedings and dismissed the application.

The accused was convicted of sexually assaulting a sleeping, intoxicated victim.

At sentencing, the defence sought a conditional sentence, citing the accused's Asperger's diagnosis, family support, and the impact incarceration would have on his family.

The Crown sought a custodial sentence.

The court weighed the aggravating factors, including the extreme vulnerability of the victim and the profound impact on her life, against the mitigating factors.

The court declined to impose a conditional sentence, finding it would be inconsistent with the fundamental principles of sentencing, and sentenced the accused to 12 months of further custody followed by 3 years of probation.