James Douglas Gilbert

The Court of Appeal for Ontario dismissed Doug Lloyd’s appeal from the Superior Court’s refusal to extend time for judicial review of the Crown’s decision to stay his private prosecution against Bell Canada.

The court held that prosecutorial discretion is only reviewable for abuse of process, which requires egregious conduct.

The application judge made no error in law or fact, and the Crown’s decision not to consider expert evidence or to stay the prosecution on public interest grounds did not amount to an abuse of process.

The applicant, T.D., brought a Charter s. 11(b) application for a stay of proceedings due to unreasonable delay in a sexual assault case.

The total delay was 55.6 months.

The court deducted 308 days for defence delay and other exceptional circumstances not related to the pandemic.

Applying the principles from R. v. Agpoon and R. v. Jordan, the court recognized the systemic and pervasive impact of the COVID-19 pandemic as a discrete exceptional circumstance, deducting an additional 14 months for pandemic-related delay.

Despite these deductions, the net delay remained in excess of the 30-month presumptive ceiling for Superior Court cases.

Consequently, the application for a stay of proceedings was granted.