Feroza Bhabha

The accused brought a section 11(b) Charter application seeking a stay of proceedings on the basis that his constitutional right to be tried within a reasonable delay was violated.

The charge was failing to comply with a recognizance.

The total delay was approximately fifteen months from arrest to trial date.

The court found that while the pure institutional delay was ten months, the additional eight-week period from December 7, 2011 to February 2, 2012 was neutral delay attributable to both parties' mistaken belief that a judicial pre-trial was mandated by court protocol when it was not.

The court found no express waiver of section 11(b) rights and minimal prejudice to the accused.

The application was dismissed.

The accused, a medical assistant at a colonoscopy clinic, was charged with sexual assault on a patient who alleged he was fondled multiple times during a routine colonoscopy procedure.

The complainant testified he was sedated but conscious throughout the procedure and experienced excruciating pain.

The accused denied the allegations and testified he had no specific recollection of the complainant's procedure.

The defence called the performing physician and an expert psychiatrist in psychopharmacology.

The court found the accused credible and his denial sincere.

The court also found significant frailties in the complainant's evidence, including inconsistencies regarding his position during the procedure, his recollection of the room layout, the type of gown worn, and the timing of his complaint.

Expert evidence established that anaesthesia-induced sexual hallucinations are a recognized pharmacological phenomenon.

The court acquitted the accused, finding the crown had failed to prove guilt beyond a reasonable doubt.

The accused brought an application for a stay of proceedings at the beginning of trial, alleging that his Charter section 11(b) right to be tried within a reasonable time had been infringed.

The charge was a sexual assault arising from an alleged inappropriate touching of a patient's breast by the accused, who was an assistant to a physiotherapist at a rehabilitation clinic.

The overall delay from charge to trial was approximately 15 months.

The court applied the Morin framework and found that the delay was reasonable given the nature of the charge, the number of anticipated witnesses, and the complexity of the case.

The application for a stay was dismissed.