M. Muia

Sentencing of a repeat offender who pleaded guilty to five counts including advertising sexual services, receiving a financial benefit from sexual services, and three counts of fraud over $5,000 causing losses exceeding $670,000 to three victims.

The court applied Duncan/Marshall mitigation of 15 months for deplorable presentence custody conditions at Maplehurst Correctional Complex, including extended lockdowns, triple-bunking, unsanitary conditions, inmate assaults, and inadequate medical care for the offender's Crohn's disease.

After a base sentence of 54 months for the frauds and maximum Summers credit of 48 months for 956 days of presentence custody, the net carceral sentence imposed was 6 months, with all sentences running concurrently.

This decision addresses two applications for a stay of proceedings under section 11(b) of the Charter for unreasonable delay, brought by two co-accused charged with sexual assault.

The court determined that the 18-month presumptive ceiling for provincial court matters applied, rather than the 30-month ceiling for cases with a preliminary inquiry, because the scheduled preliminary inquiry was not completed due to the Crown withdrawing preliminary inquiry-eligible counts and consenting to re-election to the Ontario Court of Justice.

The court found that the Crown's tactical decision not to seek an 11(b) waiver at the time of re-election was significant.

After calculating the total delay and deducting periods attributable to defence counsel unavailability and a specific period of COVID-19 related backlog (92 days for trial scheduling and judicial pre-trial scheduling), the net delay for both accused exceeded the 18-month ceiling (19.75 months for one, 20 months for the other).

Consequently, the court ordered a stay of proceedings for both accused.