R. v. Hartling, 2020 ONCA 243

Her Majesty the Queen v. Hartling

[Indexed as: R. v. Hartling]

Ontario Reports

Court of Appeal for Ontario

Benotto, Paciocco and Thorburn JJ.A.

April 3, 2020

150 O.R. (3d) 224 | 2020 ONCA 243

Case Summary

Charter of Rights and Freedoms — Remedies — Sentence reduction — Pre-verdict delay of 29 months reduced by defence delay and exceptional circumstance to 17 months and not presumptively unreasonable — Post-verdict delay of 14 months before sentencing presumptively unreasonable — Total sentence of 21.8 months reduced by five months — Canadian Charter of Rights and Freedoms, s. 11(b).

Charter of Rights and Freedoms — Trial within reasonable time — Sentencing — Pre-verdict delay of 29 months reduced by defence delay and exceptional circumstance to 17 months and not presumptively unreasonable — Post-verdict delay of 14 months before sentencing presumptively unreasonable — Total sentence of 21.8 months reduced by five months — Canadian Charter of Rights and Freedoms, s. 11(b).

Criminal law — Appeal — Fresh evidence on appeal — Accused convicted of aggravated assault of his mother — At trial, Crown introducing forensic evidence of blood splatter at the scene — On appeal, accused seeking to introduce fresh forensic evidence — Accused's expert neither properly qualified nor sufficiently objective for his evidence to be admitted.

Criminal law — Counsel — Ineffective assistance of counsel — Accused convicted of aggravated assault of his mother — At trial, Crown introducing forensic evidence of blood splatter at the scene — Trial evidence including accused's response to police officer's question about blood on his hands — Accused's statement not central to judge's reasoning — Photographs of blood corroborating view of Crown's expert and finding of trial judge — Defence counsel's decisions not to lead forensic evidence and not to raise s. 10(b) Charter violation not constituting ineffective assistance.

Criminal law — Evidence — Hearsay — Intoxicated and injured complainant telling first responders that she was beaten up by her son — Complainant testifying for Crown then changing her story and testifying for defence — Trial judge admitting statements to first responders as res gestae — Judge's finding that Crown refuted allegation of concoction was entitled to deference.

Criminal law — Rule against multiple convictions — Accused convicted of assault, aggravated assault, resisting arrest and two counts of breach of probation — Probation terms prohibited accused from drinking and required good behaviour — Trial judge relying on consumption of alcohol to ground both counts of breach of probation — Second count stayed as both counts based on same conduct.

The accused was visiting his mother at her home along with her boyfriend when the three of them began drinking, became intoxicated and got involved in an argument that turned physically violent. The first responders found the mother in her bedroom crying, intoxicated, bleeding and extensively injured. She told the first [page225] responders that the accused beat her up. At trial, in testifying for the Crown, she could not recall what happened to her. On a voir dire the trial judge found that the comments to the first responders qualified as a res gestae statement and admitted the hearsay evidence as necessary and reliable under the principled approach. After the mother separated from her boyfriend, she testified for the defence. She claimed that when her boyfriend slapped her she fell back into a chair and a table in the living room, causing her injuries. She said that the accused intervened in the scuffle, told the boyfriend to leave, and helped to her bedroom and called 911. The accused did not testify. The trial judge found that the accused likely changed her story after realizing that her son was in serious trouble. The judge rejected the defence theory as being inconsistent with the injuries and the forensic evidence of extensive blood splatter in the bedroom. The accused was convicted of aggravated assault against his mother, assault against the boyfriend, resisting arrest, and two counts of breach of a probation order prohibiting drinking and requiring good behaviour. The total sentence of 30 months was reduced to 21.8 months after 8.2 months of pre-trial custody. The accused appealed his conviction and sentence.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed in part.

The accused's attempt to admit fresh evidence of an expert was dismissed. His proposed expert forensic consultant was more of a hobbyist as he was not paid for his bloodstain analysis work. In substance and tone, his opinion was one-sided and did not reflect the independent, objective analysis required for an expert. Furthermore, his evidence was not sufficiently cogent to have affected the result as the trial judge did not base his findings solely on the Crown's expert evidence. The judge relied on the evidence of the boyfriend and the sheer illogic of the mother's defence evidence. The judge did not misapprehend the evidence.

The trial judge did not err in admitting the statements to the first responders as spontaneous utterances. One of the statements was made in the hallway outside the bedroom, while all the others were made in the bedroom. The judge's conclusion that the allegation of concoction was refuted by the statements being made under the stress of a dramatic event was entitled to deference.

The trial judge erred by not applying the Kienapple principle to the breach of probation charges. While there were various ways in which the accused's conduct could ground a count for breach of good behaviour, the trial judge specifically relied on the consumption of alcohol to ground that count. Accordingly, that count should have been stayed because the judge relied on the same conduct to ground both counts.

The accused's claim of ineffective assistance of counsel was rejected. Photographic evidence clearly showed profuse quantities of blood smeared across the bedroom wall, thereby corroborating the Crown expert's view and the trial judge's finding, so defence counsel's decision not to retain a bloodstain expert did not amount to ineffective assistance. Further, no miscarriage of justice resulted from defence counsel's failure to advance an argument for breach of the accused's s. 10(b) Charter rights. Although the accused did not testify, there was evidence of his response to a police officer who asked him at the scene about blood on his hands. The judge considered the statement, but it was not central to his reasoning. Also, the accused was not detained when he made the statement.

The accused was entitled to a reduction of sentence for post-verdict delay. There was a pre-verdict delay of 29 months, but 10 months of that was attributable to the defence and there was an exceptional circumstance delay of two months, resulting in a delay 17 months, being below the presumptive ceiling of reasonableness. However, it took 14 months after conviction for sentence to be imposed, whereas five months [page226] was presumptively unreasonable. That delay was caused by lack of institutional resources to obtain a Gladue report. The sentence was reduced by five months.

R. v. Charley (2019), 147 O.R. (3d) 497, 2019 ONCA 726, consd

Other cases referred to

R. v. B. (G.D.), [2000] 1 S.C.R. 520, 2000 SCC 22; R. v. Bosley; R. v. Cherrington, 2018 ONCA 653 (C.A.); R. v. Cooper (No. 2); R. v. Dakin; R. v. Girn (2019), 145 O.R. (3d) 420, 2019 ONCA 202 (C.A.); R. v. Gladue; R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27; R. v. Khan; R. v. MacDougall; R. v. Manasseri (2016), 132 O.R. (3d) 401, 2016 ONCA 703 (C.A.); R. v. Nicholas (2004), 70 O.R. (3d) 1; R. v. Palmer; R. v. Plein, [2018] O.J. No. 4688, 2018 ONCA 748 (C.A.); R. v. Prebtani, [2008] O.J. No. 4198, 2008 ONCA 735 (C.A.); R. v. Rahey; R. v. Truscott, [2007] O.J. No. 3221, 2007 ONCA 575 (C.A.); White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, 2015 SCC 23

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 10(b), 11(b) Criminal Code, R.S.C. 1985, c. C-46, ss. 718 [as am.], 718.2(a) [as am.]

Authorities referred to

Paciocco, David M., and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) Wigmore, John Henry, Evidence in Trials at Common Law, 3rd ed., vol. 6 (Boston: Little, Brown, 1976) [page227]

APPEAL by the accused from the conviction entered by Kukurin J., [2014] O.J. No. 6557, 2014 ONCJ 769 (C.J.) and the sentence imposed on October 9, 2015.

Counsel: Danielle Robitaille, for appellant. Christopher Webb, for respondent.

The judgment of the court was delivered by

1BENOTTO J.A.: — Following an afternoon of heavy drinking with her adult son and boyfriend, the complainant was seriously assaulted. She told first responders that her son was responsible. The son was charged. The mother testified for the Crown that her son attacked her and her boyfriend following an argument. Months later the trial resumed. This time the mother testified for the defence. She changed her testimony and said that it was her boyfriend -- not her son -- who attacked her.

2The son was convicted of aggravated assault against his mother, assault causing bodily harm against the boyfriend and two counts of breach of probation. He was given a global sentenced of 30 months in custody.

3The son appeals his convictions and sentence. He seeks to rely on fresh evidence from an expert in blood spatter patterns to support his position that it was not him but the boyfriend who attacked his mother. He alleges that the trial judge erred by relying on his mother's utterances to the first responders. Further, he submits that he received ineffective assistance at trial because his counsel did not retain a blood spatter expert, did not pursue his s. 10(b) [of the Canadian Charter of Rights and Freedoms] right to silence nor his s. 11(b) rights to a trial and sentence within a reasonable time. He seeks a new trial or a reduced sentence to remedy the post-verdict sentencing delay.

4For the reasons that follow, I would dismiss the conviction appeal, stay the second breach of probation charge, and allow the sentence appeal in part.

Facts

5On March 8, 2012, the appellant, Gordon Hartling was visiting his mother, Sharon Hartling who was at home with her then-boyfriend Francis Gill. At the time, the appellant was 41 years old, Ms. Hartling was 64 and Mr. Gill was 62. All three were sitting in the living room drinking several bottles of sherry and becoming intoxicated. An argument began and erupted into violence.

6Two versions of events unfolded at trial when Ms. Hartling testified first for the Crown and next for the defence. [page228]

Evidence for the Crown

7The Crown's case was supported by the evidence Ms. Hartling gave when called as a witness by the Crown, and the evidence of Mr. Gill. Both testified that an argument between the appellant and Ms. Hartling focused on whether she showed favouritism to his sister. Ms. Hartling said she did not want to argue and got up to go to her bedroom. At this point the appellant punched her twice in the back of the head, knocking her out. Mr. Gill intervened, and the appellant turned on him. The appellant hit and kicked Mr. Gill until he fell to the floor. Mr. Gill told Ms. Hartling to get help. He was then rendered unconscious. When he woke up, he called to Ms. Hartling, did not see her, so left.

8Meanwhile, Ms. Hartling had gone to her bedroom ostensibly to call 911. Her next memory is waking up in hospital with numerous severe injuries. The Crown contended that the appellant continued beating his mother in her bedroom, where forensics later identified a great deal of blood spatter.

9It is unclear how 911 was contacted but someone did call because emergency ambulance responders arrived: two paramedics, two firemen and a police officer. One of the firemen recalled seeing the appellant walk from Ms. Hartling's room to another bedroom. Mr. Gill was not there.

10The first responders found Ms. Hartling in her bedroom. She was sitting on the bed holding her nose. She was crying, clearly intoxicated and bleeding. She, the walls and the bedding were covered in blood. They asked what happened. Paramedic Onofrio, the first person to see her, said she said that her son hit her several times, initially in the living room then when she tried to call for help, and that he continued beating her in the bedroom and ripped the phone from her. Fireman Johns testified that he heard her say that she could not believe her son did this to her. She repeated that statement many times as they tried to get information for a medical history. Sergeant Bell, who saw her being taken out of the home on the gurney, asked her what happened, and she said that her son beat her up.

11Ms. Hartling's injuries were severe. She suffered a broken ankle, broken finger, all her left orbital bones were broken into small pieces, her nose was fractured in four places and her nose cartilage disintegrated. Portions of her skin were displaced. She was in Intensive Care at the hospital for over a month. While there she suffered a stroke and contracted pneumonia.

12Mr. Gill suffered bruises, sore ribs, shoulder injuries, sore jaw and sore leg. [page229]

Evidence for the defence

13Several months later, Ms. Hartling testified for the defence and she recounted a different scenario. This scenario is relied upon by the appellant who contends that Mr. Gill and Ms. Hartling were the ones who started the altercation. Specifically, Ms. Hartling confronted Mr. Gill and slapped him, and he slapped her back, causing her to fall back on a chrome kitchen chair. The chair moved and she fell, further hitting her face on the base of the dining room table. The appellant then intervened and had a "scuffle" with Mr. Gill. The appellant punched him and told him to leave. Ms. Hartling says she then got up and snatched a nail file and was poking at both men to get them apart. She said the son noted that she was bleeding, and he helped her to her bedroom. She said it was the appellant who called 911 even though she did not want the police involved. All the while she said she drifted in and out of consciousness. She claimed that it was contact with the chair and/or table that caused her injuries.

14The appellant did not testify.

The trial

15The trial in the Ontario Court of Justice was plagued with delays. [1] Ms. Hartling gave the evidence outlined above as part of the Crown's case in February 2013. Fifteen months later in May 2014, she testified for the defence.

16Between those two dates, in December 2013, the trial judge conducted a voir dire with respect to the admissibility of Ms. Hartling's statements to the first responders. In addition, she and Mr. Gill separated.

Voir dire

17The trial judge found that Ms. Hartling's statements to first responders met the criteria for a res gestae statement because: (1) they were made under ongoing stress of a dramatic event, (2) the statement related to the occasion that caused the stress and (3) there was little or no possibility of concoction or fabrication. Specifically, the statements were made right after a severe attack, and there was little time for her to have thought of a fictitious story, nor was she in a state of mind to do so.

18He then considered the principled approach to hearsay and determined that admission of the evidence was necessary [page230] and reliable. First, the trial judge found the evidence necessary because Ms. Hartling could recall what happened to her. Second, there was threshold reliability, based on the following circumstances:

• statements made while she was still in the throes of stressful, extraordinary events;
• statements which were consistent inter se;
• some statements were unprompted;
• she had no one with whom to collude at the time;
• her intoxication level was not so high as to nullify or severely discount the believability of her statements;
• she understood questions and responded appropriately.

Expert testimony regarding bloodstains

19The police took photographs of the home. There was blood throughout including in the living room, the hallway, the master bedroom and the guest bedroom.

20Staff Sergeant Jason Hlady was qualified as a bloodstain pattern analysis expert on consent. He had 17 years of experience with the OPP and received advanced education and training in the field. He provided a basic education to the court regarding bloodstain pattern analysis and explained the conclusions he drew from the bloodstain pattern evidence at Ms. Hartling's home.

21He opined that the there were impact patterns on the wall of Ms. Hartling's bedroom attributable to at least one strike to something that already had blood on it. The stains could also be caused by multiple strikes to the same object covered in blood as it remained stationary. This impact pattern has a "transfer pattern with wispy features" indicating that hair had come in contact with this area of the wall. After the hair contacted the bloody section of the wall a heavy blood stain flowed down over this contact pattern. The size, shape and distribution of the bloodstain patterns on Ms. Hartling's bedroom wall are typical of what Staff Sergeant Hlady would see as a result of an assault or a beating. They are caused by a force being applied to a blood source already covered in wet blood being struck. The patterns on the wall are not consistent with coughing, sneezing, spitting or otherwise throwing blood. They do not have the directionality that such patterns would display. Their placement on the wall means the beating would have occurred at the height of the chair arm or mattress, approximately 16.9 inches from the floor. [page231]

Decision below

22The trial judge found that the Crown had proven beyond a reasonable doubt that it was the appellant who inflicted injuries on his mother. He rejected the defence theory that the injuries were caused by a slap by Mr. Gill and a resulting fall. The trial judge preferred the testimony of Mr. Gill and Ms. Hartling's Crown evidence. He found that Ms. Hartling likely changed her story after realizing her son was in serious trouble, and at this point, she had broken up with Mr. Gill. Her contention that she sustained her injuries by being slapped and falling into a chair and table, were inconsistent with the extent of her injuries and with the forensic evidence. There was extensive blood in her bedroom, rather than the living room where the chair was located. The trial judge also considered her statements to the paramedic and found her defence evidence not to be credible.

23He further found that her evidence about intervening in the fight between Mr. Gill and the appellant to be incredible. During that time, she was sliding in and out of consciousness, bleeding profusely, had fractured her ankle and suffered the serious injuries referred to above. Her first account accorded with the photographs of the injuries.

24The trial judge found the appellant guilty of aggravated assault against Ms. Hartling, assault against Mr. Gill, resisting arrest and two counts of breach of probation. In his reasons, he stated that it was clear that the appellant had been drinking contrary to the terms of probation and, therefore, he had breached the prohibition on drinking and the requirement of good behaviour.

25Mr. Hartling was sentenced to a 30-month sentence: 24 months for aggravated assault, six months consecutive for assault causing bodily harm, two months concurrent each for resisting arrest and the two breaches of probation. Following 8.2 months of pretrial custody, he was sentenced to 21.8 months of incarceration.

Position of the appellant

26The appellant appeals his conviction and sentence. He seeks to admit the fresh evidence of an expert to show that blood stains in the bedroom were likely caused by expiration (coughing or sneezing), as the hospital records show that Ms. Hartling had blood in her airways. He submits that the trial judge misapprehended the forensic evidence and erred by admitting the statements to the first responders. He argues that he had ineffective assistance because trial counsel failed to call an expert to rebut the Crown's blood spatter evidence, failed to [page232] challenge the admission of a statement he made and failed to inform him of his s. 11(b) rights before and after conviction.

27He appeals the sentence on the basis that the trial judge erred by failing to give effect to the mitigating factors of the appellant's alcohol addiction and family history of violence.

Issues

28The appellant has raised three issues in his principal argument: (i) the trial judge misapprehended the forensic evidence; (ii) he erred in admitting the statements to the first responders; and (iii) he erred in not applying the Kienapple principle to the breach of probation charges. In his fresh evidence application, he raises additional issues, namely: (i) the fresh evidence of a blood spatter; (ii) breach of his s. 11(b) rights before and after conviction; (iii) ineffective assistance of trial counsel because no blood analysis expert was called and his s. 10(b) rights were not pursued with respect to his statement to Sgt. Bell.

29I address the issues in the following order:

(1) Should the fresh evidence be admitted? (2) Did the trial judge misapprehend the forensic evidence? (3) Did the trial judge err by admitting the statements to the first responders? (4) Did the trial judge err by not applying the Kienapple principle to the breach of probation charges? (5) Did trial counsel provide ineffective assistance? (6) Were the appellant's s. 11(b) rights violated? (7) Did the trial judge err in principle by imposing the sentence?

Analysis

(1) Should the fresh evidence be admitted?

30I explain the evidence sought to be admitted, the principles to be applied and the application of those principles.

The fresh evidence

31Ms. Hartling's testimony for the defence was that there had been no assault in the bedroom. The expert testimony at trial was that the blood stains on the wall of the bedroom were the result of a beating or assault. Staff Sergeant Hlady rejected the suggestion put to him by defence counsel that the blood stain on the [page233] wall could have come from the expiration of the blood during Ms. Hartling's coughing or sneezing.

32The appellant seeks to introduce the evidence of forensic consultant, Joseph Slemko, who concluded that the stains on the wall were consistent with an expiration pattern because of the presence of "near-misted" blood and diluted blood. The perpendicular direction that the stains appeared to originate from, he opines, was more consistent with expiration than an impact event.

33The appellant submits that this evidence undermines the Crown's evidence that the blood on the bedroom walls was caused by a beating.

The principles

34An expert must be properly qualified and willing to fulfil the duty to the court to provide evidence that is impartial, independent and unbiased. In White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, 2015 SCC 23, at para. 32, the Supreme Court noted:

Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another.

35A consideration of the admissibility of fresh evidence on appeal begins with R. v. Palmer, [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126. There, at p. 775 S.C.R., the court articulated the following principles:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[Citation omitted]

36These criteria have been somewhat refined to a three-part inquiry:

(1) Is the evidence admissible under the operative rules of evidence; [page234] (2) Is it sufficiently cogent such that it could reasonably have affected the verdict; (3) What is the explanation for the failure to adduce the evidence and should the explanation affect admissibility?

(See: R. v. Truscott, [2007] O.J. No. 3221, 2007 ONCA 575 (C.A.), at para. 92; R. v. Plein, [2018] O.J. No. 4688, 2018 ONCA 748 (C.A.), at para. 56; also R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703 (C.A.), at paras. 205 and 213).

Principles applied

37I consider first the qualifications of Mr. Slemko, whether he is an unbiased expert, and whether the proposed testimony is sufficiently cogent to have reasonably affected the result.

38Mr. Slemko has not worked as a bloodstain analyst since 1998. Nor has he consulted for the police since then. Since 2015 he has been an accident reconstructionist in the collision investigation unit of the Edmonton Police Service. He received his training during a five-day course in 1994, and another course in 1997. He has not taken other substantive courses. He testified that he does not get paid for his bloodstain analysis work, so his accountant calls it a hobby. He was unfamiliar with the leading text on the subject published in 2015.

39I also have concerns about his willingness to provide impartial evidence to the court. A full reading of his cross-examination discloses an unwillingness to fulfil his duty to provide unbiased opinion. The Supreme Court explained in White Burgess [at para. 32] that the "acid test [for unbiased expert evidence] is whether the expert's opinion would not change regardless of which party retained him or her".

40When confronted during cross-examination with journal-article examples of expiration events, he conceded that they did not resemble the spatter on the bedroom wall but was quick to point out that this divergence did not necessarily exclude the possibility of his expiration theory. When asked about the precise location of the high velocity particles that would arise from sneezing or coughing, he refused to substantiate his position. When asked about the apparent absence of mucus blood stains and air bubbles in scene photos, Mr. Slemko did not budge in terms of his theory: "if they're not present . . . it's not going to change my opinion at all that this is consistent with expirated blood". He went on to say about the same issue: "I haven't been able to see it because of the type of photography that was [page235] conducted. It may or may not be there. It if isn't, that is not going to change my opinion."

41Mr. Slemko later conceded that his use of terminology in the report -- "misted" rather than "near-misted" -- was in error, but would not concede what seems a logical consequence: that the discrepancy at least somewhat weakened his opinion in favour of the expiration theory. In multiple instances Mr. Slemko was confronted with the limitations of his analysis -- the granularity of his examination of scene photos, for example -- and chose to remain adamant in his opinion.

42Having reviewed the cross-examination, it appears that in both substance and tone, Mr. Slemko's opinion was one-sided and did not reflect the independent, objective analysis required for an expert.

43A combination of his lack of qualifications together with lack of independent judgment leads me to find his testimony inadmissible. But there is an additional reason: the evidence is not sufficiently cogent to have affected the result. The trial judge did not base his findings solely on the Crown's expert evidence. He explicitly stated that the "forensic and photographic evidence do not lead to an inevitable conclusion that the son beat the mother". Further, he acknowledged that the fact that bleeding occurred in the bedroom "does not link the son as the perpetrator of an assault on the mother".

44The trial judge rejected Ms. Hartling's defence evidence in part because, had she in fact started bleeding by the chair in the dining room or the living room, there would have been "copious amounts of blood" on the table, in the hallway and into the bedroom. There were not. The copious amounts of blood were in the bedroom. These findings are discussed in more detail below.

45I would not admit the fresh evidence.

(2) Did the trial judge misapprehend the forensic evidence?

46The appellant submits that, when the trial judge said there was no blood in the dining or living room, he misapprehended evidence. The impugned finding relates to his rejection of Ms. Hartling's testimony that the main cause of her injuries was what happened when she fell on the dining room chair and/or table base. The trial judge said [at paras. 36-37]:

It is clear from the mother's later testimony as a defence witness that she was bleeding after striking the table base. In fact, she said that she was bleeding "profusely". She claims that her son noted that she was bleeding and commented on this when he first realized it. Later, while in the bedroom, she says that it was her son who wanted to call 911 because she was still bleeding. The mother stated that she was hit only once, a slap by the boyfriend. No one else struck her. The only inference to be made from [page236] this is that the bleeding was caused by her head striking the base of the table or the chair.

The forensic evidence does not support this at all. If what the mother recounts as a defence witness is true, there should have been copious amounts of her blood on the base of the table, on the floor in the dining room near the table, and down the hallway from the dining room area to her bedroom doorway. There was no report of any blood, much less her blood, in any of these locations. There were, however, in the forensic and first responders' evidence, reports of quite a bit of blood on the mother, on her clothing, on her bedroom walls and on bedding in her bedroom. It is inconceivable that the mother was bleeding in the dining room or living room area with absolutely none of her blood found there. That she was bleeding while still there is clear from her own evidence that her son commented to her that she was bleeding and that, after noting this, he helped her down the hallway to her bedroom.

(Emphasis added)

47The appellant says this is not an accurate reflection of the evidence. He points to the photographs showing "apparent" blood spatter on the living room curtains and photos that show something that could be blood on the doorframe to the bedroom.

48In my view, these photographs are not inconsistent with the trial judge's findings. They do not show copious amounts of blood. All the evidence, including that of Ms. Hartling, is that she was bleeding profusely. The small amounts of what could be blood on the curtains and the doorframe pale by comparison to the bedroom walls and linens that were covered in blood. Had her defence evidence been true, there would have been a significant amount of blood in the area of the table and chair. There was not. Moreover, her testimony that after she hit her head, she witnessed a scuffle between her son and Mr. Gill, and tried to poke them with a nail file while bleeding profusely, further demonstrated why there would be blood in the area. Simply put, the trial judge did not misapprehend the photographic evidence in finding that it did not support Ms. Hartling's defence evidence.

49In concluding that the appellant was responsible for Ms. Hartling's injuries the trial judge relied on the evidence of Mr. Gill, and the sheer illogic of Ms. Hartling's defence evidence.

(3) Did the trial judge err by admitting the statements to the first responders?

50The trial judge admitted several statements made by Ms. Hartling to first responders. Paramedic Onofrio was the first person to see her. On entering Ms. Hartling's bedroom, he saw her sitting on the bed holding her nose. Paramedics and firemen described her as crying, intoxicated and covered in blood. She had an obvious fracture by her orbital bone and a broken nose. [page237]

51They asked her what happened and who did this to her. Ms. Hartling replied "my son. He's up here visiting . . . I can't believe he would do this to me." She repeated that statement many times as they tried to get information for a medical history.

52She went on to say that her son became agitated, aggressive and hit her, initially in the living room, then hit her again in the bedroom. As she tried to call for help, he ripped the phone away from her.

53As Ms. Hartling was being wheeled out of her bedroom, Sgt. Bell asked her what happened. She said her son did it.

54The trial judge admitted these statements into evidence for the truth of their contents under the spontaneous utterance (which he also referred to as "res gestae") exception and, alternatively, under the principled approach.

55The appellant submits that the trial judge erred in applying the spontaneous utterances exception because there was, at the time the statements were made, the possibility of concoction or fabrication. Ms. Hartling and Mr. Gill could have collaborated. Further she was clearly drunk and could have mixed up Mr. Gill with her son because she said that her son (not Mr. Gill) had left. The appellant also points to the gap in time between the attack on her and the statements to the first responders.

56The appellant says that these same factors also should have eliminated the trial judge's use of the principled exception to the hearsay rule.

57Again, I refer to the principles and their application to these facts.

The principles

58I begin with R. v. Khan, [1988] O.J. No. 578, 27 O.A.C. 142 (C.A.), at pp. 207-208 O.A.C.:

The test for determining admissibility, as Lord Wilberforce framed it in Ratten v. The Queen, supra at pp. 389-90, is the following:

. . . [T]he test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.

. . . . . [page238]

The rationale for this hearsay exception lies in the trustworthiness of the utterance which is regarded as furnished by an occurrence of so startling or shocking a nature as to suspend the declarant's ability to reflect and fabricate.

59John Henry Wigmore [2] suggests that the phrase "res gestae" which implies contemporaneousness is not correct. Rather, the statement that is made in circumstances of reliability is admissible because there is no opportunity for concoction. Wigmore's point is that reliability derives not from contemporaneity, per se, but from the fact that the declarant is so overwhelmed with, or shocked by, the pressure or involvement of the event that the declarant would have no real opportunity for the reflection required to concoct a story. My colleague has written that rather than describing this as a res gestae exception the better -- and more descriptive -- phrase is "spontaneous statement". [3] To be clear, since the sense of pressure or involvement in the event will reduce over time, temporal considerations are not immaterial, but the focus must be on whether the effects of the pressure or involvement from the event are operating at the time the statement is made.

60In R. v. Nicholas (2004), 70 O.R. (3d) 1, [2004] O.J. No. 725 (C.A.), this court considered a ten-minute gap between the event and the utterance. There, a complainant awoke to find someone standing by her bed. The intruder repeatedly hit her on the head, covered her face with a pillow and had intercourse with her. She made an 11-minute 911 call approximately ten minutes after the intruder left. In determining that the statement was admissible, the court referred to R. v. Dakin, [1995] O.J. No. 944, 80 O.A.C. 253 (C.A.). In that case, the accused was charged with the murder of two women who died as a result of burns. The Crown sought to introduce statements made by one of the women an hour after the fire. The court cited Khan, at p. 207 C.C.C.:

[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive or misrepresent. The admissibility of such statements is dependent on the possibility [page239] of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.

(Emphasis added)

61Therefore, while a temporal connection to the event that triggered the statement is a factor, it is not determinative. The admissibility is an issue to be determined by the trial judge.

Principles applied

62The trial judge admitted all the statements made to the first responders that were made in Ms. Hartling's home while being treated and prepared for the ambulance.

63There was no direct evidence of the time between the 911 call and the arrival of the first responders. The Hartling home was 15 minutes from Sault Ste. Marie where the responders originated from. As the trial judge said in his ruling:

Although no specific evidence was presented as to the lapse of time between the traumatic event (or events) between the son and the mother, from the totality of the evidence can be drawn the inference that the time interval was not very lengthy. The mother was still bleeding from her mouth and from her orbital area. Her highly emotional state, her crying and her repetitive exclamations suggest that what had taken place between her son and her was relatively recent. Her words "Help me, help me", suggest a perceived danger that was still close at hand, or, at least very recently had been.

64All of the statements satisfy the requirements of the spontaneous statement exception. With the exception of the statement to Sgt. Bell, they took place in Ms. Hartling's bedroom. The statement to Sgt. Bell took place in the hallway outside of her bedroom.

65The trial judge found that the statements were made under the stress of a dramatic event and she was repeating herself over and over. Further, the beating was the trigger for the statements. She was emotional and still bleeding when the first responders arrived and spoke to her.

66The appellant submits that there was opportunity to concoct, because Mr. Gill said that when he awoke he called and looked for Ms. Hartling. He argues that this would have given Mr. Gill an opportunity to have Ms. Hartling concoct a story. However, Mr. Gill's evidence was that he did not see Ms. Hartling after he was knocked unconscious. Even in Ms. Hartling's defence testimony she said that she was "in and out of consciousness" and barely recalls the ambulance arriving. The trial judge's ultimate conclusion that "she was still and very clearly, under the stress and pressure of the assault upon [page240] her when she made the statements in question" refutes the allegation of concoction and is entitled to deference.

67The trial judge did not err by admitting the statements as spontaneous utterances. I note in any event that he also admitted the statements pursuant to the principled approach. In light of my conclusion, it is not necessary to discuss this approach.

(4) Did the trial judge err by not applying the Kienapple principle to the breach of probation charges?

68The trial judge convicted the appellant on two counts of breach of probation: one related to his consumption of alcohol; the other the requirement to keep the peace and be of good behaviour. On the first count it was clear that he breached his probation by consuming alcohol. But the trial judge said that by consuming alcohol he was also not "being of good behaviour" so he breached that condition as well. The trial judge did not rely on any other conduct for the second count.

69In my view, the second charge should have been stayed because the trial judge relied on the same conduct to ground both charges.

70The Crown agrees that the trial judge erred but submits that the curative proviso should be applied to the second count because there was other conduct that clearly violated the terms of the probation order. I do not agree. While the appellant committed numerous offences that could ground the second breach, I would not apply the proviso. The trial judge specifically relied on the consumption of alcohol to ground the second count. I am unable to say whether, but for the Kienapple error, he would have found the appellant guilty of the second count. Nor do I think that, in the circumstances of this case, the interests of justice require that the proviso be applied.

(5) Did trial counsel provide ineffective assistance?

71The appellant alleges that his trial counsel provided ineffective assistance by not obtaining an independent bloodstain pattern analysis report. He also contends that counsel was ineffective in not challenging the constitutionality of the statement he made to Sgt. Bell pursuant to s. 10(b) of the Charter. [4] Specifically, before the appellant was advised of his right to counsel Sgt. Bell noticed blood on his hands. She asked him what happened, and he replied: "it is what it is". [page241]

The principles

72An ineffective assistance of counsel claim has two components: performance and prejudice. The appellant must show that (i) trial counsel's acts or omissions amounted to incompetence, and (ii) a miscarriage of justice occurred: R. v. Prebtani, [2008] O.J. No. 4198, 2008 ONCA 735 (C.A.), at paras. 3-4.

73To establish a claim of ineffective assistance of counsel, the appellant must establish:

(1) The facts that underpin the claim; (2) That counsel's representation was inadequate; and, (3) That counsel's inadequate representation resulted in a miscarriage of justice.

74This test presents a high bar that is not easily met: R. v. Cherrington, [2018] O.J. No. 4012, 2018 ONCA 653 (C.A.), at para. 25. As Watt J.A. explained, once the first step of the test is established, the analysis turns to the third step, or the prejudice component, of whether there was a miscarriage of justice. If there was no prejudice, then it is "undesirable" for the court to proceed to the second step, or the performance component, of the test: R. v. Girn (2019), 145 O.R. (3d) 420, 2019 ONCA 202 (C.A.), at para. 92. The analysis under the performance component "proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. B. (G.D.), [2000] 1 S.C.R. 520, 2000 SCC 22, at para. 27. The presumption of competence "is tested against a standard of reasonableness, and accords no place to hindsight": Cherrington, at para. 26; see also B. (G.D.), at para. 27.

The principles applied with respect to the expert

75In my view, the appellant cannot meet the threshold requirement of prejudice. There was no miscarriage of justice. As I have already stated, the trial judge did not base his findings solely or even mainly on the Crown's expert evidence. Recall he said [at para. 40] the "forensic evidence and the photographic evidence do not lead to an inevitable conclusion that the son beat the mother" (emphasis added). And, while the evidence established that the bleeding occurred in the bedroom, the expert evidence [at para. 41] "does not link the son as the perpetrator of an assault on the mother".

76Even if trial counsel had retained an expert, establishing that coughing -- not impact -- caused the blood spatter, that does [page242] not change the fact Ms. Hartling's blood was found on the bedroom walls, not elsewhere in the house. Notably, even the appellant's expert agrees that if a "significant bloodletting event" had happened somewhere else in the house, like the living room, there would be blood spatter patterns in that spot. Photographic evidence corroborates the Crown expert's view and the trial judge's finding. Even to an untrained eye, the photos show profuse quantities of blood smeared across the bedroom wall.

77Moreover, it appears defence counsel made a strategic decision not to call an expert. Counsel's cross-examination of Staff Sergeant Hlady established evidence favourable to the defence: the photos were not the best evidence on which to form an expert opinion; and he conceded that he speculated that an assault caused the blood spatter. It cannot be said, in the circumstances, that the only adequate choice counsel could have made at trial was to retain a defence expert.

The principles applied with respect to the exclusion of the appellant's statements

78Although the appellant did not testify, the trial judge relied on evidence presented about him when determining whether he was the person who caused the injuries to his mother. He said that the appellant made a statement to Sgt. Bell when she asked what had happened:

His response was "It is what it is". This is not the response one would expect from a person who was aware of his mother's distressed condition and who cared for her. Nor was it the response of a son who had helped his mother after she was slapped by her boyfriend.

79In his appeal factum the appellant submits that counsel failed to challenge the admissibility of this statement on the basis of voluntariness and the police did not caution the appellant on his Charter right to remain silent until after he was detained in a cell at the station. The voluntariness argument was not pressed in oral argument, only the failure by trial counsel to bring a s. 10(b) challenge. I will nonetheless address the voluntariness issue briefly.

80Counsel did not challenge the voluntariness of the statement at trial, and the appellant has not appealed on the basis that the trial judge failed to conduct a voir dire. I would reject the argument that was raised in the factum, that trial counsel was ineffective in failing to challenge the voluntariness of the appellant's statement. There is no air of reality to the prospect that the statement would have been found to be involuntary if there had been a challenge. The trial judge found that statement to have [page243] been spontaneous. There were no inducements or coercion revealed on the record, and no oppression. The failure to raise voluntariness therefore caused no prejudice.

81I conclude that the failure to bring a s. 10(b) Charter claim did not result in a miscarriage of justice. I say this for two reasons.

82First, although the trial judge considered the impugned statement, this factor was not central to the trial judge's reasoning. The trial judge took a number of other factors into account -- namely, that the appellant was the "only other person in the house when first responders arrived" and that remnants of the broken cord of the telephone were found in his bedroom. When the first responders entered the home"a male person was seen moving from the mother's bedroom to the guest bedroom" before the mother was found in her bedroom with severe injuries. In her first version of events, Ms. Hartling said she had gone to her bedroom to call the police, had picked up the phone, and that was the last thing she remembered. The telephone cord leads to the inference the appellant "took it from the mother and brought it to his bedroom".

83Second, the appellant was not detained when he made that statement. One of the firefighters, Mr. Nolan, was concerned the appellant was going to be aggressive, so he kept the bedroom door closed to avoid "'deal[ing] with him' while they were treating Ms. Hartling". He closed the door so that the paramedics could "do their job" without him getting in the way. This type of detention is not the same as being detained by law enforcement. Nothing prevented the appellant from leaving the house.

84I note here as well that trial counsel's decision not to challenge the admissibility was strategic. He testified that the right to counsel was not a "great argument".

85There was no miscarriage of justice with respect to counsel's decision not to challenge the statement to Sgt. Bell.

(6) Did the trial judge err in principle in imposing the sentence?

86The appellant submits that the trial judge erred in principle by failing to give effect to the mitigating factors of the appellant's alcohol addiction and history of family violence.

87I do not agree. The trial judge's reasons for sentence provided due consideration to the relevant aggravating and mitigating factors, including the Gladue report. I see no error in principle.

88The appellant further submits that the sentence should be clarified so that it is served in a provincial reformatory as intended by the trial judge when he said:

I am particularly aware that the duration of incarceration would place the offender in a provincial correctional institution as opposed to a penitentiary. That is my intention. [page244]

89The Crown agrees and understands that the sentence is to be served in a provincial reformatory. There is no need for further clarification by this court.

(7) Were the appellant's s. 11(b) rights violated?

90The appellant alleges that his s. 11(b) Charter rights were violated both pre- and post-conviction.

Pre-verdict delay

91There is no doubt that the trial was plagued with delay. [5] The total delay was 29 months. However, ten months of the delay is attributable to the defence: a six-month delay which resulted directly from a meritless recusal motion brought by the defence; a two-month delay representing the difficulty rescheduling after the motion; and another two-month delay when the defence asked for time to prepare closing submissions. I will address the recusal motion in some detail to explain why it is defence delay.

92The defence asked the trial judge to recuse himself after he made the following comment:

So, I have a real inconsistency here that you both are leaving me with and saying you deal with it. So, I am dealing with it to try and find out why, why is it that she could see something and remember something when she has told both of you that she didn't.

93Based on this one comment alone, which the defence argued was an inappropriate question by the trial judge, the defence brought a recusal motion alleging a reasonable apprehension of bias. The bar for reasonable apprehension of bias is high, and this case clearly did not meet the standard. The trial judge's comment was not inappropriate, nor did it prejudice the accused. The recusal motion had no merit. Accordingly, the six-month period of delay caused by the recusal motion should be attributed to the defence. In addition, the subsequent delay that was caused while waiting for trial to resume was also attributed to the accused. The recusal motion resulted in a delay of an additional two months because of the time for a ruling and the difficulty of rescheduling the continuation.

94There was also an exceptional circumstance delay of two months caused by the appointment of initial trial counsel to the bench and a two-month delay when the defence asked for time to prepare closing submissions. [page245]

95After these periods of 12 months are subtracted, there are 17 months of remaining delay, which does not surpass the presumptive ceiling. There was no pre-verdict delay causing a s. 11(b) breach.

Post-verdict delay

96The post-verdict delay is another matter. It took 14 months after conviction for the sentence to be imposed. This delay was not caused by ineffective judicial management. It was not caused by the appellant, nor was it caused directly by the actions of the prosecutor. It was caused by the lack of institutional resources to obtain a Gladue report.

97Immediately upon conviction, trial counsel obtained an order for a Gladue report from the trial judge. However, court administration services denied funding. At the time -- as difficult to understand as it seems -- there was only one Gladue writer in the Algoma district. There were no Gladue writers provided by Aboriginal Legal Services in the Algoma district. Therefore, there were only two options: (a) paying privately out of pocket; or (b) obtaining Legal Aid funding. Ultimately, the appellant, with the assistance of his counsel, chose to pay privately.

98The issue of post-verdict delay was addressed by this court in R. v. Charley (2019), 147 O.R. (3d) 497, [2019] O.J. No. 4693, 2019 ONCA 726 (C.A.), where a presumptive ceiling of five months was set for the time from verdict to sentence. At paras. 86 and 87, Doherty J.A. explained:

In fixing a presumptive ceiling, I bear in mind that the presumptive ceiling is not intended to identify the amount of time it should take to move the case from verdict to sentence. As stated by the majority in Jordan, at para. 56:

We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.

I would set the presumptive ceiling for post-verdict delay at five months. In doing so, I stress that five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls to the Crown to justify the delay.

99Five months is the point at which post-verdict delay to sentence becomes presumptively unreasonable. Fourteen months [page246] is nearly three times the delay. So the burden now shifts to the Crown to justify the delay.

100In an attempt to justify the delay, the Crown alleges extraordinary circumstances because of the issues with the Gladue report and because the case was already in the system when Charley was decided.

101I accept neither part of this submission.

102I do not agree that the circumstances are exceptional. It cannot be said that it is exceptional to require a Gladue report in the Algoma district where there is a large Indigenous population. Gladue reports were created in order to address systemic injustice that uniquely affects Indigenous offenders, and which leads to overrepresentation in the criminal justice system. A long delay undermines the purpose of the Gladue report by creating another level of unfairness. Moreover, to submit that the preparation of such a report is exceptional is untenable.

103The appellant was entitled to a Gladue report, the trial judge ordered it, and subsequently relied on it.

104The second branch of the Crown's justification for the delay is that this case was already "in the system" on the release of Charley. Therefore, the Crown says, there should be no remedy for post-verdict delay.

105I do not agree.

106The impact on transitional cases was addressed in Charley, at para. 105:

I make one further observation with respect to the application of the Jordan analysis to post-verdict delay. Jordan recognized that the new framework it put in place should be applied somewhat differently in respect of cases that were in the system before Jordan was released: see Jordan, at paras. 95-100. The majority described transitional exceptional circumstances that could, in some situations, justify delay above the presumptive ceiling. I would take the same approach in applying the presumptive ceiling applicable to post-verdict delay set down in this case.

107According to [Jordan [R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27]](https://www.minicounsel.ca/scc/2016/27), the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to qualifications [at paras. 96, 97 and 100]:

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the [page247] system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable.

Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues.

Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

(Italics in original; underlining emphasis added)

108These qualifications do not apply here. There was no reasonable reliance on the appropriateness of the long delay. The delay was not a result of a "change [that] takes time" to implement. R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, was decided in 1999. Before the release of Charley, it could not be said that a 14-month delay was acceptable. Nor can it be said that the parties would have been reasonable to rely on the previous state of the law. A 14-month delay was unreasonable then, and it is now.

109The 14-month post-conviction delay was unreasonable and breached the appellant's s. 11(b) Charter rights.

110This brings me to remedy.

111Although no post-verdict delay was found in Charley, this court discussed the remedy when a post-conviction breach is found. When the breach is pre-verdict, a stay is the only available remedy. Post-verdict is different.

112Compare the rationale to that of a pre-verdict breach. A pre-verdict breach targets conviction because -- as explained in R. v. Rahey, [1987] 1 S.C.R. 588, [1987] S.C.J. No. 23 -- the court loses jurisdiction when there is an s. 11(b) breach before trial. If an accused has the right to be tried within a certain time, the accused has the right not to be tried beyond that point and "no trial . . . is permissible. To allow a trial to proceed after such a finding would be to participate in a further violation of the Charter": Rahey, at p. 614 S.C.R.

113When there has been no pre-verdict delay, the conviction is not tainted by a Charter breach. The appellant is no longer presumed innocent. A stay of a valid conviction would impact public confidence in the administration of justice. As Doherty J.A. said [in Charley] at para. 108: [page248]

In Betterman v. Montana, 578 U.S. ___, 136 S. Ct. 1609, at p. 1615, Ginsburg J., for the court, described the possibility of vacating a valid conviction based on sentencing delay as "an unjustified windfall" for the accused. That seems to me to be an accurate description.

114The appropriate and just remedy here should target the sentence, not the conviction. The appellant was convicted of a violent offence against his mother in her home. It would bring the administration of justice into disrepute to stay the conviction.

115On the other hand, delay in sentencing causes prejudice to the offender and to society. The offender is unable to begin rebuilding a life, rehabilitation is impacted, and the offender lives with the anxiety of an uncertain future: Rahey at pp. 605-606 S.C.R. Likewise, society "has a keen interest in ensuring that those guilty of committing crimes receive an appropriate sentence promptly": R. v. MacDougall, [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, at para. 36.

116For the remedy to target the sentence, it must be based on and align with sentencing principles. Section 718.2(a) of the Criminal Code, R.S.C. 1985, c. C-46 requires:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. . .

(Emphasis added)

117The process of sentencing is highly individualized with reference to the offender. It also involves discretion on the part of the sentencing judge particularly when a sentence is reduced to reflect relevant mitigating circumstances. One such mitigating circumstance is delay from conviction to sentence.

118Delay in sentencing that does not rise to the level of a Charter breach has long been considered a factor in mitigation of sentence: R. v. Cooper (No.2), [1977] O.J. No. 721, 35 C.C.C. (2d) 35 (C.A.), R. v. Bosley, [1992] O.J. No. 2656, 59 O.A.C. 161 (C.A.).

119Delay in sentencing that breaches an offender's Charter rights should also be considered a mitigating circumstance. But it is one that should result in more than standard mitigation; it should result in enhanced mitigation. This would meet the objectives and principles of sentencing codified in s. 718 of the Criminal Code while also providing a meaningful remedy for the Charter breach.

120Delay was not considered when the appellant was sentenced to 30 months incarceration. The delay which led to a Charter breach is a circumstance giving rise to enhanced mitigation.

121I conclude that the appellant is entitled to enhanced mitigation to reduce the sentence. [page249]

122As with mitigating circumstances generally, there can be no automatic or formulaic calculation of the reduction in sentence. Nor can a firm principle be established based on one case. The jurisprudence will -- as always -- develop with each case determined on its own particular facts, considering the offence, the offender, the length of the delay, the circumstances of the delay and any other relevant factors. Here, the offence was serious. The appellant did nothing to contribute to the delay. The delay was caused by a failure to provide adequate services to a vulnerable segment of society. The appellant was required to wait over a year to have his future determined. These are serious factors which caused a significant Charter breach.

123In the circumstances here, I would reduce the sentence by five months.

Conclusion

124I would dismiss the conviction appeal, stay the second breach of probation charge and allow the sentence appeal in part by reducing the sentence by five months.

Appeal from conviction dismissed; appeal from sentence allowed in part.

APPENDIX A: SECTION 11(B) DELAY TIMELINE

Notes

1These are discussed in a separate section below.

2Evidence in Trials at Common Law, 3rd ed., vol. 6 (Boston: Little, Brown, 1976), at para. 1767.

3David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 186.

4The appellant also alleged ineffective assistance in relation to s. 11(b). This issue is dealt with separately.

5A full summary, based on submissions by parties, is attached as Appendix A.

End of Document