Court of Appeal for Ontario
Judges: Cronk, Juriansz and Paciocco JJ.A.
Parties
Between
Her Majesty the Queen
Respondent
and
Samuel St. Amand
Appellant
Counsel
Michael F.W. Bennett, for the appellant
Michelle Campbell, for the respondent
Hearing
Heard: September 29, 2017
On appeal from: The conviction entered on March 31, 2014 and the sentence imposed on June 1, 2016 by Justice John Kukurin of the Ontario Court of Justice.
By the Court
Introduction
1On April 17, 2013 the appellant, Samuel St. Amand, was arrested and charged with one count each of making available and possession of child pornography, contrary to ss. 163.1(3) and 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46.
2During a lawful search of the appellant's residence and computer, the police discovered child pornography on the appellant's computer. Subsequent forensic examination of the computer disclosed more than 3,900 unique images. Most of the stored images were not immediately accessible, but 750 of them were. Forensic examination also disclosed that there had been active sharing of the images through an electronic file sharing program.
3While the search of his home and computer was in progress, the appellant made an inculpatory statement to the police in which he acknowledged responsibility for the images. It is accepted that the statement was voluntary and not obtained in breach of the appellant's constitutional rights.
4On March 31, 2014 the appellant pleaded guilty to making available child pornography. His sentencing hearing began shortly after the entry of his guilty plea and continued thereafter on various dates until sentence was eventually imposed on June 1, 2016.
5The appellant testified at the sentencing hearing. He admitted his guilt on the making available pornography charge, but maintained that all his actions were accidental. He said that he routinely downloaded various files, without knowing their contents, and then deleted the files he did not want. He testified the only reason the child pornographic images were readily accessible on his computer on the day of his arrest was because he "just didn't get around to deleting [them]".
6The sentencing judge rejected the appellant's account. He found the appellant was aware of how the file sharing program operated. It followed that the appellant had knowingly acquired and shared images through the program. He sentenced the appellant to the mandatory minimum sentence of 12 months imprisonment set out under s. 163.1(3) of the Criminal Code for the charged offence of making available child pornography, less credit at the rate of 1.5:1 for pre-sentence custody. He also imposed a 15-month probation order and various ancillary orders. The Crown withdrew the possession of pornography charge following sentencing.
7The appellant appeals from his conviction, seeks leave to appeal his sentence and, if leave be granted, seeks a reduced sentence of six months imprisonment, less time served.
Issues and Parties' Positions
8The appellant does not contest his guilty plea. However, he contends that the sentencing judge erred by failing to stay the proceedings against him in response to three distinct stay applications brought by the defense during the course of the sentencing hearing and, further, by failing to properly address the appellant's Notice of Constitutional Question, also filed during the sentencing hearing.
9The appellant raises three specific issues. First, he argues that the sentencing judge erred by dismissing his applications for a stay of proceedings based on abuse of process, in breach of his constitutionally protected rights under s. 7 of the Canadian Charter of Rights and Freedoms.
10Next, and relatedly, the appellant submits that the sentencing judge erred in his treatment of the appellant's Notice of Constitutional Question, in which the appellant challenged the propriety of the Crown's decision to proceed in this case by indictment, rather than summarily.
11Finally, the appellant submits that the sentencing judge erred by dismissing his application for a stay of proceedings based on unreasonable delay, in breach of his s. 11(b) Charter right to be tried within a reasonable time.
12The Crown submits that there was no abuse of process in this case. Further, the Crown says, the appellant's Notice of Constitutional Question did not actually attack the constitutional validity of any Criminal Code provision and the sentencing judge was entitled to find, as he did, that the appellant's constitutional challenge failed because it essentially repeated the same arguments as those rejected on the appellant's first abuse of process application.
13The Crown readily acknowledges the delay in this case was substantial. However, it argues the delay was reasonable pursuant to the principles articulated by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, in particular under the transitional exceptional circumstance for the application of s. 11(b) of the Charter identified in that case. The Crown contends that the appellant's case was greatly protracted by the appellant's own actions; that the appellant suffered no prejudice from the delay; and that the offence of which the appellant was convicted is serious.
Analysis
(1) Abuse of Process Applications
(a) First Abuse of Process Application
14We turn first to the appellant's abuse of process claims.
15During his sentencing hearing, the appellant twice sought a stay of proceedings based on abuse of process allegedly arising from prosecutorial misconduct. His first abuse of process application, dated April 22, 2015, focused primarily on the Crown's election to proceed by indictment in this case, rather than summarily.
16This election was important because, at the time, the charge of making available child pornography was a hybrid offence. Under s. 163.1(3) of the Criminal Code, a prosecution by indictment for a charge of making available child pornography triggered a mandatory minimum sentence of 12 months imprisonment. In contrast, a six-month mandatory minimum sentence applied on summary conviction for the same charge.
17The appellant claimed that, by electing to proceed by indictment rather than summarily, the Crown "exercised its discretion in a manner that result[ed] in a grossly disproportionate sentence". He relied on three aspects of the Crown's conduct in support of this claim.
18First, he argued that, prior to making its election, the Crown failed to evaluate the nature and seriousness of the alleged offence by failing to review and organize the images in accordance with a classification system called the "COPINE scale".
19Second, the appellant challenged the Crown's failure to reconsider its original election after receiving, both from police forensic experts and the defence, post-charge information favourable to the defence.
20Third, the appellant attacked the Crown's change of position on sentencing. Initially, the Crown took the position that a fit sentence was 18 months imprisonment (six months more than the statutory mandatory minimum), or 15 months on a joint sentencing submission. In mid-December 2014, the Crown offered a revised position on sentencing – 12 months imprisonment, plus three years probation and various ancillary orders, on a joint submission. This offer was time limited and was not accepted by the defence. Finally, in April 2015, the Crown informed the defence that it would seek a 12-month sentence of imprisonment, plus probation for 18 months and various ancillary orders. This was the sentence ultimately sought by the Crown at the sentencing hearing.
21The appellant maintained that these actions by the Crown, in combination, were improper tactics that exposed him to greater potential penal consequences than were warranted in the circumstances; that sought to fetter the sentencing judge's discretion regarding the available range of sentence; and that were designed to pressure him into agreeing to a sentence of 12 months imprisonment.
22The sentencing judge, for clear and cogent reasons, dismissed the appellant's first abuse of process application. He began his analysis by recognizing the wide prosecutorial discretion vested by Parliament in the Crown regarding the manner of proceeding with prosecutions for hybrid offences, like the one at issue in this case. As he put it, at para. 50 of his ruling"prosecutors throughout this province make such decisions routinely on a daily basis."
23He next set out the grounds advanced by the appellant in support of his application, and then turned to the governing principles for an abuse of process claim relating to the alleged improper exercise of prosecutorial discretion. Citing the Supreme Court of Canada's leading decision in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 and this court's decision in R. v. Delchev, 2015 ONCA 381, 126 O.R. (3d) 267, the sentencing judge noted, correctly, that the appellant was obliged to establish a proper evidentiary foundation for his abuse of process claim before it could proceed: Anderson, at paras. 52-53. As this court explained in Delchev, at para. 49, only if an accused meets this threshold evidentiary burden will the court inquire into the reasons behind the exercise of prosecutorial discretion. This pre-condition for judicial intervention respects the presumption that prosecutorial discretion is exercised in good faith: Anderson, at para. 55.
24The sentencing judge concluded that the appellant had failed to satisfy this threshold evidentiary requirement. He held, at para. 69:
Nothing in the evidence in the sentencing hearing persuades me that, in exercising its discretion, the Crown's decision to proceed by indictment, both when it was first made, and for the duration it has continued in effect, qualifies as egregious conduct. The word 'egregious' carries a connotation of scandalous, shocking and outrageous. The Crown's continuing election comes nowhere close to this. It does not compromise the integrity of the justice system. Nor does it, in my view, compromise the fairness of the sentencing (trial) process for this accused. I do not see "bad faith" in this exercise of the Crown's prosecutorial discretion.
25The sentencing judge also dealt head-on with the appellant's assertions that the Crown, prior to electing whether to proceed by indictment, was obliged to examine and categorize the images found on the appellant's computer in accordance with the COPINE scale and, thereafter, to re-examine its election decision in light of subsequently obtained information about the appellant's circumstances and those of the offence.
26With respect to the first assertion – the urged compulsory use of the COPINE scale – the sentencing judge recognized that the COPINE scale is not universally used or required in the investigation of child pornography offences. He also recognized that the relative seriousness of the images – something that the COPINE scale purports to measure – could be addressed during sentencing. He put it this way, at para. 73: "Whether or not the COPINE scale is applied and in what manner is a decision that applies to the imposition of sentence, not to the exercise of prosecutorial discretion."
27The sentencing judge also rejected the appellant's claim the Crown was required to have regard to the particular attributes of the accused in exercising its discretion. To impose such a requirement on the Crown, in his view, would wrongly equate the duties of a prosecutor with those of a sentencing judge, contrary to the teachings of Anderson. Imposition of a proportionate sentence on an accused is a duty the law imposes on judges, not prosecutors. Parliament, he emphasized, has created a discretionary framework under the criminal law that affords the Crown discretion to choose how to proceed with the prosecution of a hybrid offence. The Crown's resulting election reflects the exercise of prosecutorial discretion.
28Moreover, and in any event, the sentencing judge found that, in fact, the Crown had not ignored or disregarded post-charge information about the appellant's circumstances or those of the offence. To the contrary, it had considered and challenged certain of that information, including a psychological assessment of the appellant furnished by the defence. The Crown, he noted, was not obliged to accept this assessment at face value or to attenuate its election decision based on a defence psychological risk assessment of the appellant.
29The sentencing judge summarized his conclusions at para. 74 of his reasons, in this fashion:
In summary, the amended application (dated April 22, 2015) is dismissed. The accused has not shown an abuse of process has taken place as a result of the Crown's election to proceed by indictment, or by its decision in maintaining this position. He has not shown bad faith, or improper motive. The decisions of the Crown are not so rare or exceptional as to require an explanation. The accused has not demonstrated that his Charter right to liberty has been infringed by the decisions made by the Crown. Accordingly, he is not entitled to any remedy under s. 24(1) of the Charter on the basis of this amended application.
30We see no basis for appellate interference with the sentencing judge's ruling on this application. To succeed on this application, the appellant was obliged to demonstrate Crown conduct that was "egregious and seriously compromise[d] trial fairness and/or the integrity of the justice system": Anderson, at para. 50. He failed to establish any Crown conduct that met this exacting standard. Nor, as the sentencing judge recognized, can the Crown's decision to proceed by indictment or its positions on sentence properly be characterized as rare and exceptional exercises of prosecutorial discretion. Decisions of this kind by the Crown are commonplace in our criminal justice system.
31The sentencing judge's reasons confirm he recognized the controlling legal principles for an abuse of process claim of this nature and, having considered the evidence bearing on that claim, properly applied those principles. His holding that the appellant failed to establish an evidentiary foundation for his first abuse of process claim is amply supported by the record.
(b) Second Abuse of Process Application
32We reach a similar conclusion regarding the sentencing judge's ruling on the appellant's second abuse of process application.
33The legal basis for this "fresh" abuse of process application, dated November 30, 2015, is not entirely clear. The application appears to have rested on the contention that the Crown was required to give notice to the defence of its intention to cross-examine the appellant and other defence witnesses at the sentencing hearing, and that the Crown's failure to do so occasioned prejudice to the appellant.
34In support of this contention, the appellant argued that it was an abuse of process for the Crown to cross-examine defence witnesses, including the appellant, after the Crown had revised its original position on sentencing and decided to seek the 12-month mandatory minimum under s. 163.1(3) of the Criminal Code. According to the appellant, this change in position rendered any need to challenge the defence evidence moot. As a result, the appellant claimed, the Crown's continued pursuit of that challenge was intended merely to vindicate its original election to proceed by indictment, a decision already in issue on the first abuse of process application.
35In our opinion, this claim is clearly misconceived. Indeed, it may fairly be described as frivolous. As the sentencing judge observed, the Crown was under no legal obligation to provide notice to the defence of its intention to cross-examine witnesses at the sentencing hearing. Further, absent evidence of bad faith or improper motives, which were not demonstrated here, the Crown is not obliged to provide reasons for its decisions in the course of a prosecution: Anderson, at para. 55.
36Moreover, on the sentencing judge's findings, the appellant failed to adduce any evidence of prejudice arising from the Crown's decision to cross-examine defence witnesses at the sentencing hearing. Nor, before this court, does the appellant point to evidence of such prejudice.
37The sentencing judge expressly rejected the appellant's assertion that the Crown's decision to cross-examine witnesses at the sentencing hearing was motivated by a desire to justify its impugned indictable election, or its original decision to seek a sentence of 18 months imprisonment. He was entitled to do so.
38Apart altogether from the application of the mandatory minimum sentence, there were legitimate reasons for the Crown to cross-examine the defence witnesses. First, the mandatory minimum aside, there were other sentencing considerations in play. The Crown, for instance, was obliged to support the duration and terms of the probation order it was seeking. Second, as the appellant conceded at the appeal hearing, at the time of the cross-examinations, the appellant had already indicated his intention to launch a constitutional challenge. The Crown was entitled to seek to establish an evidentiary record that was responsive to that challenge.
39Perhaps more importantly, as this court accepted in R. v. Khalid, 2010 ONCA 861, 183 O.R. (3d) 600, at para. 2, leave to appeal refused, [2011] S.C.C.A. No. 322, evidence regarding an accused's state of mind and his degree of moral blameworthiness is properly part of a sentencing hearing: R. v. Gardiner, [1982] 2 S.C.R. 368, 140 D.L.R. (3d) 612. The Crown is not compelled to accept defence evidence material to sentencing. Nor is it required to proceed to sentencing on a record of defence counsel's choosing. A sentencing judge is entitled to a full evidentiary record in making sentencing decisions, not the record preferred by the defence.
40This was particularly true in this case, where the appellant was prepared to admit only to wilful blindness in relation to the charges, that is, to a reduced level of moral culpability. Having heard the appellant's testimony, the sentencing judge rejected his claim that he was wilfully blind to the receipt and sharing of the child pornographic images found on his computer. To the contrary, the sentencing judge concluded that the appellant knew what he was doing.
41For these reasons, we reject the appellant's challenge to the sentencing judge's dismissal of his second abuse of process application.
(2) Notice of Constitutional Question
42The constitutional question proposed by the appellant is not clearly stated, either in his June 5, 2015 Notice of Constitutional Question or in his factum on appeal. While the appellant's Notice urges that "the statutory mandatory minimum should be struck down", it does not challenge any specific Criminal Code provision. Further, the "material facts" stated in the Notice echo the arguments advanced by the appellant in support of his unsuccessful first abuse of process claim.
43The appellant posited no clear constitutional question, separate from his s. 7 Charter arguments on his first abuse of process application, before the sentencing judge. When questioned by the sentencing judge as to whether he was attacking the constitutional validity of s. 163.1(3) of the Criminal Code, the responses of the appellant's counsel were equivocal.
44Nonetheless, contrary to the appellant's submission, the sentencing judge did address, and resolve, the appellant's Notice of Constitutional Question. He dismissed the appellant's constitutional challenge – such as it was – for essentially the same reasons as those underpinning his dismissal of the first abuse of process application. He did not err in doing so.
45To the extent the appellant may be taken as having argued that the sentencing judge erred by declining to hold that the Crown must invariably justify its election with respect to the prosecution of a hybrid offence attracting different mandatory minimums, this argument must also fail. Simply put, it is not a constitutional question.
46Notably, the appellant concedes on appeal that he is not challenging the constitutional validity of any mandatory minimum sentencing provision of the Criminal Code. In his factum, the appellant states:
The Appellant has not challenged the constitutionality of mandatory minimums. His challenge is to the rule of law preventing a sentencing judge from scrutinizing the Crown's election as to which of two mandatory minimums a judge is bound to impose.
47On this ground, as well, no constitutional question arises.
(3) Section 11(b) Application
48As we have said, on April 10, 2015 the appellant brought an application for a stay of proceedings based on an alleged breach of his s. 11(b) Charter right to be tried within a reasonable time.
49To recap, the appellant was charged on April 17, 2013. On March 31, 2014 he entered a guilty plea to the charge of making available child pornography, and his sentencing hearing began shortly thereafter. Sentence was eventually imposed on June 1, 2016. Thus, the total delay was approximately 38 months.
(a) Sentencing Judge's Ruling
50At the time of the appellant's s. 11(b) stay application, the framework set out by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771, including the guidelines for how much institutional delay is generally tolerable, governed the application of s. 11(b). Applying that framework, the sentencing judge found that the delay in this case was not unreasonable and dismissed the application.
51Under Morin, the determination whether a s. 11(b) Charter breach has occurred requires the balancing of four factors: i) the length of the delay; ii) defence waiver; iii) the reasons for the delay; and iv) prejudice to the accused's s. 7 Charter interests in liberty, security of the person, and a fair trial: Jordan, at para. 30. Institutional delay is evaluated against a set of guidelines developed by the court in Morin – eight to ten months as a guide for institutional delay in the provincial court, and an additional six to eight months as a guide for institutional delay in the superior court after an accused's committal for trial: Jordan, at para. 52.
52As required under Morin, the sentencing judge considered each of these factors in determining the reasonableness of the total delay in this case. In doing so, he confined his analysis to the period from April 2013, when the appellant was charged, to September 2015, when his s. 11(b) application was argued – a total of 29 months.
53In examining the reasons for this delay, the sentencing judge attributed 17.5 months to neutral or inherent delay, four months delay to the Crown, and seven and one-half months delay to the defence. His breakdown, at paras. 27-37, was as follows:
April 17, 2013 to October 17, 2013 (6 months): neutral intake delay, involving such matters as the retainer of counsel, bail proceedings, receipt of Crown disclosure, and the like;
October 17, 2013 to December 19, 2013 (2 months): neutral inherent delay, involving a defence request for a December 2013 date for plea and disposition. On December 16, 2013 the defence sought an adjournment of the scheduled plea date. By then, the parties had agreed that a sentencing hearing would be necessary;
December 19, 2013 to March 31, 2014 (3.5 months): neutral inherent delay, arising from both Crown and defence actions. Both parties agreed to the cancellation of the original December 2013 plea date, to the need for a sentencing hearing and to a new plea date of March 31, 2014. As well, the 2013 holiday season intervened;
March 31, 2014 (one day): neutral inherent delay, involving the hearing of evidence and a finding of guilty on the plea entered by the appellant;
March 31, 2014 to November 12, 2014 (7.5 months): defence delay. The Crown had completed its evidence at the sentencing hearing, the defence was not prepared to set a continuation date until a pre-sentence report was received, and a defence expert was unavailable to testify until November 2014;
November 12, 2014 to December 19, 2014 (1 month): neutral inherent delay. The hearing continued on November 12, 2014 but, again, was not completed. The defence needed time to consider and, if necessary, file a Charter application, and the Crown required time to move for a disclosure order relating to the work of a defence expert;
December 19, 2014 to April 23, 2015 (4 months): institutional delay. A continuation date for the hearing could not be set prior to April 23, 2015 due to the unavailability of the assigned judge; and
April 23, 2015 to September 14, 2015 (5 months): neutral inherent delay. The evidence at the hearing was completed at the end of May 2015, but a continuation date acceptable to both counsel was not available until September 2015.
(b) Jordan Framework
(i) Presumptive unreasonable delay
54The Supreme Court of Canada released its decision in Jordan approximately one month after the appellant was sentenced. Jordan establishes a materially new framework for applying s. 11(b), holding that there are presumptive ceilings beyond which delay, from the date of the charge to the actual or anticipated end of an accused's trial, is presumed to be unreasonable.
55Under Jordan, the presumptive ceiling is 18 months for cases tried in the provincial court, like this one, and 30 months for cases tried in the superior court. Delay caused or waived by the defence does not count towards the presumptive ceiling: Jordan, at paras. 49, 60-62, 66, and 105.
56If, in any case, the applicable presumptive ceiling is exceeded, the Crown bears the burden of rebutting the presumption of unreasonableness by establishing the presence of exceptional circumstances. If the Crown fails to do so, the delay is unreasonable and a stay of proceedings will follow. If the delay in question falls below the presumptive ceiling, the defence bears the burden to show that the delay is unreasonable: Jordan, at paras. 47-48.
(ii) Transitional cases
57Under Jordan, where the reasonableness of delay in a case commenced under the pre-Jordan s. 11(b) regime is determined post-Jordan, the s. 11(b) analysis involves three steps.
58First, the total delay must be calculated for comparison to the applicable presumptive ceiling. The delay attributable to the defence is then subtracted from the total delay, to yield a net delay: Jordan, at paras. 60 and 66.
59Second, if the net delay (total delay minus defence delay) exceeds the applicable presumptive ceiling, the Crown may rebut the resulting presumption of unreasonableness by demonstrating that the delay is reasonable because of exceptional circumstances: Jordan, at para. 68.
60Third, in cases where the charges pre-date Jordan, the presumption of unreasonableness may nevertheless be rebutted where the Crown demonstrates that a transitional exceptional circumstance justifies the delay. That is, that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed: Jordan, at paras. 95-96; R. v. Picard, 2017 ONCA 692, at para. 26; R. v. Cody, 2017 SCC 31, 411 D.L.R. (4th) 619, at para. 25. As a result, where, as here, the entirety of the proceedings pre-date Jordan and the presumptive ceiling is exceeded, the Crown may rebut the presumption of unreasonableness if it demonstrates that the delay was reasonable in light of the parties' reasonable reliance on Morin.
(c) Application of Jordan
61The sentencing judge did not have the benefit of the Supreme Court of Canada's decision in Jordan. It therefore falls to this court to assess the reasonableness of the delay in this case in light of Jordan, including its directions for the application of s. 11(b) in respect of cases that were already in the system when Jordan was released.
62This approach is subject to one significant qualification. Most, although not all, the delay in this case arose in connection with the appellant's sentencing hearing, after he had pleaded guilty and had been convicted of making available child pornography. It is clear that s. 11(b) applies to sentencing proceedings: R. v. MacDougall, [1998] 3 S.C.R. 45, at para. 27. It is not clear, however, that the presumptive ceilings established in Jordan similarly apply to such proceedings. The majority of the Supreme Court in Jordan expressly declined to determine this issue, stating, at footnote 2:
The issue of delay in sentencing, however, is not before us, and we make no comment about how this [presumptive] ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.
63Counsel in this case did not raise any issue about how the Jordan presumptive ceilings for delay apply after a conviction has been entered. Accordingly, this important question must await determination in another case, where the court has the benefit of a full record and argument on the issue. We therefore approach our evaluation of the reasonableness of the delay in this case on the assumption, without deciding, that the current Jordan presumptive ceilings for delay are implicated.
(i) Total delay and defence delay
64The Crown accepts that the total delay here was approximately 38 months from the date of the appellant's charges in April 2013 until sentence was imposed in June 2016. We agree.
65While this total delay exceeds the applicable Jordan guideline by 20 months, it is the net delay that is to be used to measure whether the delay is presumptively unreasonable. It remains to determine how much of the 38-month delay, if any, is attributable to defence delay so that the net delay can be calculated.
66Jordan confirms that defence delay has two components: delay waived by the defence and delay caused solely or directly by defence conduct: Jordan, at paras. 61 and 63; Cody, at para. 26. There is no suggestion here of any defence-waived delay. Consequently, the focus is on the second component of defence delay – delay attributable to defence conduct.
67The Crown accepts the sentencing judge's attribution of seven and one-half months delay to the defence for the period March 31, 2014 to November 12, 2014. The date of March 31, 2014 had been set as the agreed date for the sentencing hearing and the Crown led the entirety of its case on that day. However, the defence sought an adjournment in order to obtain a pre-sentence report, to consider what defence evidence to call, and to arrange for the attendance of a proposed defence expert, Dr. Valliant, a registered psychologist. This witness proved to be unavailable prior to November 12, 2014. In short, the defence was unprepared on March 31 and had not even determined when Dr. Valliant would be available to testify. In these circumstances, we agree that this seven and one-half months period is properly regarded as defence delay.
68However, the Crown submits the last six and one-half months before the appellant was finally sentenced, an interval not considered by the sentencing judge because it consists of delay after argument of the s. 11(b) application, is also defence delay. On this approach, the total defence delay is 14 months, yielding a net delay under the Jordan framework of about 24 months.
69The Crown argues the additional six and one-half months delay was caused exclusively by the appellant's unmeritorious and belated second abuse of process application, described above. The Crown maintains that this application derailed the sentencing judge's deliberations, because it had to be heard and resolved in order to know whether a sentence should be imposed.
70We agree with the latter submissions.
71We have already concluded that the appellant's second abuse of process application was misconceived and frivolous. It was therefore "illegitimate" defence conduct within the meaning of that term as contemplated in Jordan and Cody. Jordan holds that deliberate and calculated defence tactics aimed at causing delay, including frivolous applications and requests, are straightforward examples of defence delay: Jordan, at para. 63; Cody, at paras. 30-35.
72The second abuse of process application was also late. Dated November 30, 2015 (more than two years and seven months after the charges), it complained of Crown conduct that occurred in the spring of 2015, when the Crown cross-examined defence witnesses at the sentencing hearing.
73Moreover, this belated application did indeed derail deliberations. The sentencing judge's decisions on the s. 11(b) stay application and the appellant's first abuse of process application were scheduled for release on December 7, 2015 but the second application intervened. It was not until January 5, 2016 that this new application could be argued. To expedite matters and avoid yet another hearing date, the sentencing judge ordered that sentencing submissions should be filed in writing. Rulings on the defence applications and reasons for sentence were released on May 17, 2016 and sentence was imposed on June 1, 2016.
74Thus, the timing of the second abuse of process application directly caused delay in the progress of the sentencing hearing. As the Crown argues, it also strongly suggests that the defence was indifferent towards the delay it was causing. But for this application, it might reasonably have been expected that the sentencing judge's rulings on the first abuse of process and s. 11(b) stay applications would have been available on the set date of December 7, 2015, leaving only the sentencing matter to be resolved. As a result, the sentencing hearing may well have been concluded on January 5, 2016 – a day used for submissions on the second abuse of process application – or shortly thereafter.
75Jordan holds that "defence actions legitimately taken to respond to the charges" do not constitute defence delay and should not be deducted: Jordan, at paras. 65-66; see also Cody, at para. 29. In our view, in a post-Jordan case, a frivolous and misconceived defence application or motion is unlikely to qualify as a legitimate response to charges against an accused, thus falling within the ambit of defence delay for the purposes of s. 11(b). Jordan essentially says so.
76Here, however, the appellant's sentencing hearing was conducted at a time when, under the operative s. 11(b) Morin framework, tactical defence decisions causing or contributing to delay did not have the same prominence as they now do, under the Jordan regime.
77Jordan makes clear that the new s. 11(b) framework is to be applied contextually and flexibly to pre-Jordan cases. As the Jordan court held, at paras. 94 and 96: "it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice."
78For this reason, in this transitional case, fairness requires that we decline to treat the additional six and one-half months immediately preceding the date of the appellant's sentencing as defence delay.
79There were, however, other periods of defence delay not included in the sentencing judge's or the Crown's calculations. Jordan recognizes that defence delay may also result if the court and the Crown are ready to proceed, but the defence is not. The ensuing delay resulting from that unavailability is to be attributed to the defence: Jordan, at para. 64; Cody, at para. 30.
80As we will elaborate at paras. 97 and 98 of these reasons, the defence in this case declined available dates for the continuation of the sentencing hearing due to the unavailability of trial defence counsel, leading to approximately four weeks of additional delay. This delay must be added to the sentencing judge's defence delay calculation, thereby resulting in total defence delay of approximately eight and one-half months. Deduction of this defence delay from the total delay of approximately 38 months yields a net delay of 29 and one-half months. This exceeds the ceiling for cases tried in the provincial court and, hence, is presumptively unreasonable under the Jordan principles, subject to consideration of "discrete events" – one category of "exceptional circumstances" under Jordan, to which we now turn.
(ii) Exceptional circumstances
81Exceptional circumstances that may rebut the presumption of unreasonable delay are those that lie outside the Crown's control because: i) they are reasonably unforeseen or reasonably unavoidable; and ii) they cannot reasonably be remedied by the Crown: Jordan, at para. 69; Cody, at para. 45.
82Jordan holds that, while the list of circumstances that may qualify as exceptional for these purposes is not closed, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases: Jordan, at para. 71. Where the delay is reasonably attributable to a discrete event, for instance, to a participant's unexpected illness or other unforeseen medical emergency, the delay attributable to that event must be subtracted from the total delay. If the exceptional circumstance arises from the complexity of the case, the delay is reasonable and no further analysis is required: Jordan, at paras. 75 and 80.
83The Crown does not rely in this case on any discrete event as an exceptional circumstance capable of rebutting the presumption of unreasonable delay. Nor did we understand it to argue that this case, viewed as a whole, was sufficiently complex as to justify the overall delay. These factors, therefore, need not be considered further.
84That said, we note that complexity relating to the offence is nonetheless relevant in considering the reasons for the delay. We will return to this issue later in these reasons.
(iii) Transitional exceptional circumstance
85Given that the Crown is not relying on the type of exceptional circumstances described above to rebut the presumption of unreasonableness, the s. 11(b) analysis in this case turns on whether the Crown has established that the net delay is justified based on the third form of exceptional circumstance recognized in Jordan, namely"the parties' reasonable reliance on the law as it previously existed": Jordan, at para. 96.
86Jordan emphasizes that this transitional exceptional circumstance requires "a contextual assessment, sensitive to the manner in which the previous framework was applied", as well as "the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice": Jordan, at para. 96. Our consideration of the sentencing judge's s. 11(b) analysis under the former Morin framework proceeds on this basis.
87First, the intake period of delay. Recall that the sentencing judge identified 11.5 months (April 17, 2013 to March 31, 2014) as neutral inherent delay. In doing so, he addressed the complexity of a child pornography prosecution, holding, at para. 38:
That the initial intake period was longer than might have been expected is explained, in part, by the nature of the charge and the fact that police analysis of the computer files in the accused's hard drive is a tedious, time consuming process, and it takes place, for the most part, after the charge is laid. As a result, Crown disclosure is delayed, as are Crown-defence discussions and negotiations. There is some appellate recognition of the lengthier post-charge investigation process in child pornography cases. [Emphasis in original; Citation omitted.]
88This was a proper and necessary consideration under the Morin framework. There can be no dispute that much of the time consuming forensic investigation in a child pornography case occurs after the charge, leading to a lengthier intake period: R. v. Stilwell, 2014 ONCA 563, 324 O.A.C. 72.
89Moreover, much of the intake delay here was triggered by the inability of the parties to agree on a sentencing position or to achieve an agreed statement of facts. When the Crown ultimately chose to present oral evidence at a sentencing hearing, the parties consented to an adjournment to March 31, 2014 to prepare for and accommodate that hearing. The parties clearly were not ready to proceed until March 31, 2014.
90Accordingly, we see no basis for interference with the sentencing judge's decision to treat 11.5 months as inherent delay.
91As we have already discussed, the next material period of delay, March 31, 2014 to November 12, 2014, is properly regarded as 7.5 months of defence delay, attributable to lack of preparation by the defence.
92On November 12, 2014, the day the sentencing hearing next continued, matters were not concluded. The next hearing date was set for December 19, 2014. The appellant required an adjournment to decide whether to launch a Charter application. For its part, the Crown sought further production regarding the anticipated evidence of the defence psychologist, Dr. Valliant. The sentencing judge considered this one month delay to be neutral inherent delay. We agree. Once again, the parties were not ready to proceed, given the new issues that had arisen.
93The following four months or so, from December 19, 2014 to April 23, 2015, was institutional delay under the Morin regime. The matter did not conclude on December 19, 2014 and needed to be continued. The sentencing judge was unavailable, however, until after April 15, 2015 leading to a continuation date about one week later.
94The sentencing hearing was still not completed on April 23, 2015. The evidentiary phase of the hearing ultimately concluded at the end of May 2015. Yet the appellant's s. 11(b) stay application was not ready to be heard until September 4, 2015. The day proved to be insufficient and a further date of November 2, 2015 was assigned. Submissions concluded on that date.
95Of this entire period of delay, the sentencing judge described about five months as neutral inherent delay (April 23, 2015 to September 14, 2015) because much of it was caused by the unavailability of counsel over the summer. As we have explained, he did not consider the delay after mid-September 2015. The delay between April 23, 2015 and November 2, 2015 was approximately six and one-half months.
96On appeal, the Crown concedes that not all this delay was neutral. Much of it was caused by Crown unavailability. The Crown accepts responsibility for delays between: i) April 23, 2015 to May 26, 2015; ii) May 28, 2015 to September 4, 2015; and iii) September 10, 2015 to November 2, 2015. Crown counsel was unavailable for dates offered when the court and defence counsel could proceed. The Crown identifies only 15 days between April 23, 2015 to September 10, 2015 as inherent delay, attributable to hearing dates and agreed adjournments.
97In our view, this overstates the delay attributable to the Crown. Dates available to the court in August 2015 were not utilized because defence counsel was unavailable. Had he been, the hearing could have continued several weeks before the September 4, 2015 date.
98While we accept the inherent delay of 15 days identified by the Crown, we also conclude that additional delay of approximately four weeks arose from defence counsel's unavailability. The Crown delay under a Morin analysis for the period April 23, 2015 to November 2, 2015 therefore approaches four and one-half months, rather than approximately six months, as suggested by the Crown.
99The Crown concedes that the period between November 2 and November 27, 2015 is institutional delay. We agree.
100The next relevant period of delay is that arising between November 27, 2015 and the imposition of sentence on June 1, 2016. As already discussed, the Crown urges that this delay should be attributed to the defence. For the reasons already given, we disagree.
101Some of this period, however, was inherent delay. The appellant's second abuse of process application, dated November 30, 2015, generated at least 30 days of inherent delay (the pre-hearing filing period applicable in criminal cases). The remainder of this period, approximately five months, was institutional delay.
102Of the total net delay of approximately 29 and one-half months (total delay minus defence delay), 14 months is therefore properly attributed to inherent delay. The remaining delay – approximately 15 and one-half months – consists of about 10 months of institutional delay, and about four and one-half months of Crown delay. The aggregate delay, therefore, exceeds the Morin guideline of eight to ten months for cases tried in the provincial court.
103Viewing the matter as a whole, we conclude that, in the circumstances of this case, the Crown would have understood the delay of approximately 15 and one-half months to be justifiable, given its reasonable reliance on the Morin regime. We say this for several reasons.
104First, with the exception of the filing of the appellant's s. 11(b) application, the conduct of the defence throughout demonstrated a marked disinterest in moving the sentencing hearing forward. As a result, the appellant is poorly positioned to complain about the prejudicial impact of delay, an important factor under the Morin framework.
105Specifically, the record reveals that defence counsel was content to engage in protracted exchanges with Crown counsel, attempting to induce a change of election by the Crown and to lower the potential sentencing range that applied. In the meantime, the defence did little to advance the case. Once it was evident that an agreed statement of facts could not be achieved, it was Crown counsel who sought a sentencing hearing. The defence agreed. Yet, when the set date for that hearing arrived, defence counsel was unprepared: strategic decisions had not been made, and the availability of the defence expert witness had not been ascertained.
106The defence recalcitrance to a timely resolution did not end there. As we have explained, shortly after its filing, the appellant's s. 11(b) Charter application was amended to include a claim of abuse of process based on alleged prosecutorial misconduct. Then, on the eve of the date set for the release of the sentencing judge's rulings on those applications, the defence brought a second, frivolous abuse of process application, complaining of Crown conduct dating back many months earlier, to the spring of 2015. That this application would derail the progress of the sentencing hearing was inevitable.
107Second, we again emphasize that the net delay in this case arose primarily in the context of the appellant's sentencing hearing, after the appellant's guilty plea and consequential loss of the presumption of innocence. The sentencing judge rightly treated this as a pertinent consideration. We agree with his observations, at para. 40:
There is, in my view, a qualitative difference between a criminal case that proceeds on a not guilty plea and one that proceeds on a plea of guilt to the offence charged. In the latter, the accused no longer has the presumption of innocence. The disposition (sentencing) portion of a criminal case is unquestionably a part of the "trial". However, the finding of guilt does subtly affect the assessment of prejudice to the accused in the interval between such finding and the imposition of sentence. In the present case, the imposition of sentence could have taken place when the finding of guilt was made on March 31, 2014. It was primarily the decisions and the steps taken by the accused from then onwards that has precluded a finalization of the "trial". The accused has been having his "trial" all along, albeit in a piecemeal fashion.
108Finally, the seriousness of the offence and prejudice are central considerations under the Morin framework. They also continue to play an important role under the Jordan transitional exceptional circumstance: Cody, at paras. 69-70. As the court said in Cody, at para. 71, for a case that pre-dates Jordan"the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice." See also Picard, at para. 43.
109The sentencing judge found that the evidence of prejudice to the appellant's s. 7 Charter interests under the Morin framework was modest.
110We agree. The record reveals that the prejudice to the appellant caused by the delay was minimal and, to a significant extent, self-inflicted. He was on bail throughout and the Crown consented to the only bail variation sought. Further, as we have emphasized, the defence conduct was inconsistent with the objective of a timely resolution.
111Unquestionably, the offence is also serious. We note, for example, that the current provisions of the Criminal Code stipulate that the charge of making available child pornography is an indictable offence and, upon conviction, an accused is subject to a statutory mandatory minimum sentence of 12 months imprisonment.
112When all these factors are viewed cumulatively, and in light of the reasons for the delay described above, we agree with the sentencing judge's conclusion that the prejudice sustained by the appellant from the delay in this case did not outweigh the societal interest in having his sentencing hearing proceed to completion, without a stay of proceedings due to delay. To paraphrase the language from Jordan, the Crown would have understood the delay to be reasonable, given expectations under Morin. Hence, the delay was reasonable under the Jordan transitional exceptional circumstance.
113We therefore reject this ground of appeal.
Disposition
114For the reasons given, the appeal from conviction is dismissed, leave to appeal sentence is granted, and the sentence appeal is dismissed.
Released: November 27, 2017
"DMP" "E.A. Cronk J.A."
"NOV 27 2017" "I agree R.G. Juriansz J.A."
"I agree David M. Paciocco J.A."
