R. v. J.K., 2021 ONCA 256

Her Majesty the Queen v. J.K.

[Indexed as: R. v. K. (J.)]

Ontario Reports Court of Appeal for Ontario van Rensburg, Benotto and Thorburn JJ.A. April 26, 2021 155 O.R. (3d) 427 | 2021 ONCA 256

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Remedies — Stay of proceedings — Accused calling from remote reserve on day of scheduled court appearance to say that he was unable to attend in Ottawa — Accused arrested on bench warrant nine months later — Total pre-trial delay 31 months most taking place before Jordan decision and 13-month post-conviction delay related to issues obtaining Gladue report — Accused's application for a stay based on pre- and post-conviction delay dismissed and accused convicted — Appeal from conviction dismissed — Nine-month delay during outstanding bench warrant justified under transitional exceptional circumstance approach — Six months of post-conviction delay attributable to administrative error and properly deducted as discrete exceptional event — Trial judge did not err in rejecting application for stay based on unreasonable delay contrary to s. 11(b) of the Charter of Rights and Freedoms. [page428]

Criminal law — Appeal — Fresh evidence on appeal — Accused convicted of sexual assault — Accused denying that had intercourse with complainant and complainant having no recollection due to intoxication — Complainant awaking with no clothes on lower body, being unable to find panties and having painful vagina — Few days later complainant having to get nurse to remove tampon lodged in her vagina — Trial judge accepting that evidence of sexual assault corroborated by nurse having to extract tampon and evidence of other witnesses — Accused claiming that tampon became lodged by complainant's own actions — Accused's fresh evidence of an expert report on causes and symptoms of lodged tampons could have been adduced at trial and therefore inadmissible as failed to meet Palmer criteria — Trial judge did not reject accused's explanation as impossible, only highly unlikely — Given other evidence confirming sexual assault tendered evidence lacking cogency required for admission of fresh evidence — Appeal from conviction dismissed.

Criminal law — Sentencing — Aboriginal offenders — Sexual assault — Accused's appeal of sentence to two years in prison for sexual assault dismissed — Fresh evidence of rehabilitative efforts since sentencing was positive but did not justify reduction of sentence — Trial judge took into account aggravating factors of forced sexual assault on complainant incapacitated by alcohol, and mitigating factors of no prior record, Gladue report and compliance with bail conditions — But for personal circumstances, Crown's requested sentence of three years would have been fit.

The appellant and the complainant were military personnel and events leading to charge of sexual assault took place in appellant's tent while both were attending a competition in Ottawa. The complainant was highly intoxicated and two colleagues carried her to her tent after finding her passed out. She had vomited and her colleagues removed her dirty top and put her to bed, fully clothed below her waist. She awoke the next day with no clothing on her lower body, she was unable to find her underwear or to locate the tampon she had been wearing. She had vaginal pain which persisted even after she returned to her home. She went to see a nurse who removed a tampon lodged in her vagina. The appellant was arrested by military police on a charge of sexual assault in July 2014 at his residence at a fly-in reserve in Northwestern Ontario and ordered to appear in Ottawa in October. On the date of his scheduled court appearance, the appellant called to say that he would be unable to travel to the Ottawa court. He was re-arrested nine months later on a bench warrant for failing to appear and circumstances required him to live in Toronto while on bail pending trial. The trial judge accepted evidence that the appellant had told a colleague that he had sexual intercourse with the complainant and a second colleague saw him with a pair of women's underwear the day after the sexual assault. The trial judge did not accept the appellant's account of the events, specifically that the complainant's self-pleasuring with her fingers would have caused her tampon to be lodged in her vagina such that a nurse had to extract it. After the appellant was convicted the trial judge ordered a Gladue report. There was a delay of 13 months before the report was received, in part because of an unknown administrative error that resulted in the request for the report not being received by the agency that prepared it for six months. In addition, the Gladue report was complex and the writer was already assigned to several other reports when the order was received. After the accused was convicted he brought an application under s. 11( b ) of the Canadian Charter of Rights and Freedoms to stay the proceedings on the basis of a pre-conviction delay of 39 months [page429] and a post-conviction delay of 13 months. With respect to the pre-conviction delay, the trial judge focused on the nine months between the scheduled court date and the re-arrest. The judge deducted that entire period from the overall delay because the appellant, although blameless, was not entitled to any form of remedy for something that was not the fault of the Crown. With respect to the post-conviction delay, the trial judge attributed six months to an administrative error and deducted that period as a discrete exceptional event. The further seven months was due to the complexity of the Gladue report. The Charter application was dismissed and the appellant was sentenced to two years in prison. He appealed his conviction and sentence.

Held, the appeal should be dismissed.

The fresh evidence is not admitted. The appellant sought to introduce as fresh evidence a letter from a gynecologist as an expert report on the causes and symptoms of lodged tampons. However, the report did not meet the test for fresh evidence as such an opinion could have been adduced at trial and it was not so cogent that, in light of the other evidence adduced at trial, it could reasonably be expected to have affected the results.

It is agreed that the pre-trial delay was not unreasonable, although for different reasons than those of the trial judge. The nine-month pre-conviction delay while the bench warrant was outstanding was justified under the transitional exceptional circumstance approach. The appellant sought to put responsibility for all or most of that period on the Crown on the basis that there was no common law duty to assist the police. The Crown asserted that defence delay included any period when the court and Crown were ready to proceed and the accused was not. The case did not fit comfortably into the analysis in the existing jurisprudence. It was not an appropriate case to weigh the competing arguments respecting defence and Crown responsibility. Most of the pre-conviction delay occurred before the release of the Jordan decision by the Supreme Court of Canada. The overall delay of 31.5 months exceeded the Jordan presumptive ceiling by only 1.5 months, so it was preferable to address the nine-month delay under the transitional exceptional circumstance. The trial judge did not do so despite noting that it was a transitional case. The entire bench warrant period pre-dated Jordan . The overall delay did not exceed the guidelines of the law as it existed at the time. The case was not complex. It would have been preferable for the Crown to explain why it took military police nine months to execute the bench warrant, but the appellant acknowledged that some delay in executing the warrant would be reasonable. There was no evidence that he suffered prejudice as he continued to reside in his home under a promise to appear and without restrictive bail conditions. The rest of the proceedings prior to conviction went smoothly. There was no violation of the right to trial within a reasonable time.

The trial judge did not err in finding no unreasonable post-conviction delay. A discrete exceptional circumstance was reasonably unavoidable or unforeseeable on the part of the Crown and was unable to be reasonably remedied. The first period of post-conviction delay met that test. The judge's conclusion of an administrative error with an unknown source was consistent with the evidence. While it was incumbent on the Crown to minimize the delay resulting from the error, there was no suggestion that the Crown could have discovered the error sooner or mitigated its effect. By the time the parties learned of the error, much of the delay had already occurred and the parties took appropriate action to move the matter forward thereafter. Even if the administrative error were not characterized as a discrete exceptional circumstance, all of the post-conviction delay was justified as a transitional exceptional circumstance. [page430]

The sentence was fit. The appellant submitted fresh evidence of his personal circumstances since being sentenced. He had been released on bail pending appeal and submitted that re-incarceration would have been counterproductive to the rehabilitative steps he had taken and continued to take since release. Such fresh evidence was positive and encouraging, but it did not justify a reduction of sentence. The trial judge considered the aggravating circumstances of forced intercourse on a complainant incapacitated by alcohol. It was an opportunistic breach of trust and the appellant's bragging about a sexual conquest was misogynistic. The judge also considered the mitigating factors of no prior record, the Gladue report, the appellant's history of negative personal experiences, letters of support, and compliance with restrictive bail conditions that resulted in circumstances requiring him to live in Toronto, far from his home and family pending trial and sentencing. But for the appellant's personal circumstances, the Crown's requested sentence of three years would have been fit. It was not in the interests of justice to stay any portion of the execution of the sentence.

Statutes referred to

• Canadian Charter of Rights and Freedoms, s. 11(b) [page431]

APPEAL from conviction and sentence for sexual assault entered by Phillips J., reported at [2017] O.J. No. 5521, 2017 ONSC 6411 (S.C.J.).

Counsel: Michelle Psutka, for appellant. Tracy Kozlowski, for respondent.

The judgment of the court was delivered by

VAN RENSBURG J.A. : —

A. Overview

1J.K. appeals his conviction for sexual assault and he seeks leave to appeal his sentence of two years in prison.

2The charge arose out of a sexual encounter between the complainant and the appellant. The complainant was highly intoxicated and had no memory of the assault. The appellant admitted that there was sexual contact, which he said was consensual, but he denied having had intercourse with the complainant.

3The trial judge concluded that the offence was made out beyond a reasonable doubt. He accepted the evidence that the appellant had told others that he had sexual intercourse with the complainant, and that this was corroborated by evidence that a tampon had become lodged in the complainant's vagina, something she discovered in the days after the encounter. The trial judge accepted that the appellant proceeded knowing that the complainant was incapable of consenting and therefore was not consenting, or that the appellant was reckless as to whether or not she was capable of consenting and consented.

4The trial judge also dismissed an application under the Canadian Charter of Rights and Freedoms that the appellant brought post-conviction. Among other things, he submitted that pre-conviction delay of 39 months (that focused on a nine-month delay between the date he failed to attend court pursuant to a promise to appear and his re-arrest under a bench warrant), and a post-conviction delay of 13 months in connection with the time that it took to obtain a Gladue report violated his right under s. 11 ( b ) to be tried within a reasonable time.

5The appellant raises two issues on his conviction appeal. First, he says that the trial judge erred in his treatment of the evidence that a tampon had become lodged in the complainant's vagina when he rejected a cause other than sexual intercourse for the lodged tampon as being physically impossible. The appellant seeks to introduce fresh evidence on this issue. Second, he asserts [page432] that the trial judge erred in dismissing his Charter application and refusing a stay of proceedings based on the pre-conviction delay.

6On his sentence appeal the appellant contends that the trial judge erred by failing to find a breach of s. 11 ( b ) post-conviction and in failing to take the delay into consideration in his sentence. The appellant also seeks a reduction in sentence or a stay of execution of his sentence based on fresh evidence.

7For the reasons that follow, I would not admit the fresh evidence on the conviction appeal, and I would dismiss the conviction appeal. I would admit the fresh evidence on the sentence appeal, grant leave to appeal sentence, and dismiss the sentence appeal.

B. Facts

8The charge arose out of a sexual encounter between the complainant and the appellant when they were attending a marksmanship competition in Ottawa with other military personnel. The complainant was the only female attending the competition on her team, which included the appellant. Members of the team were consuming alcohol together in the appellant's tent on the evening of the incident. The complainant, who was drinking heavily, was found by two other teammates who carried her to her tent.

9The complainant testified that her last memory of that night was finishing a bottle of whisky. Her next memory was waking up in the morning in her tent, realizing that she was naked from the waist down, not being able to find her underwear, and feeling her vagina was sore and being unable to find the tampon she had inserted the day before. Later in the week the complainant spoke to a teammate, F.N., who told her that the appellant had her underwear, and that he had shown it to the other men and was talking about her. The complainant continued to have discomfort in her vaginal area when she returned home, and she saw a nurse who extracted a tampon that was lodged in her vagina.

10F.N. testified that the morning after the incident, the appellant told him that he had had sex with the complainant the night before, and that the appellant had shown him the complainant's underwear and described the position the complainant was in during the sexual intercourse. F.N. testified that he had told the complainant that the appellant had her underwear and was bragging about having had sex with her in the tent. Another teammate, C.N., testified that on the night in question, he and another man found the complainant passed out at a picnic table. They carried her to the bed in her tent and removed her sweater because she had vomited on it but did not remove [page433] any other clothing. C.N. eventually left the tent to go to the lounge. The next morning, when C.N. went to the appellant's tent, he saw the appellant sleeping with a pair of women's underwear in his hands.

11The appellant testified that he had gone to the complainant's tent that night to get a PowerAde sports drink that she had promised him. He knocked, and after the complainant responded he entered and approached her bed. The appellant testified that the complainant had started to rub his crotch over his clothing, then pulled out his penis and stroked it. The complainant was putting her fingers inside her vagina. When she said the name of another teammate, he was surprised and felt awkward. He left the tent, and as he did so, he noticed that the complainant's underwear was caught on his shoe. He did not return it because he felt awkward about the situation. The appellant admitted that the next day, he took out the underwear to brag, and that he told the other men that he had "fooled around" with the complainant. He denied that he had sexual intercourse with the complainant.

C. The Trial Judge's Reasons for Conviction

12The trial judge accepted most of the complainant's evidence, as well as the evidence of F.N. and C.N. that is set out above. He did not accept the appellant's account of the events. The appellant's evidence was inconsistent with the evidence of other witnesses, and it contained inconsistencies within itself. The trial judge concluded that the complainant's self-pleasuring would not have caused her tampon to be lodged in her vagina such that a nurse had to remove it.

13The trial judge concluded that the Crown had proved beyond a reasonable doubt that there was sexual intercourse between the appellant and the complainant because he had admitted it to F.N., whose evidence the trial judge accepted. The complainant's soreness and the physical evidence of a tampon being lodged in her vagina were also circumstantial pieces of evidence of sexual intercourse. Accepting the evidence of C.N. about the complainant's condition, the trial judge concluded that she was intoxicated to the point that she was incapable of consenting. Finally, the appellant was either aware that the complainant was incapable of consenting or he was reckless or willfully blind in proceeding with intercourse.

D. The Charter Application

14The appellant's sentencing was delayed, in part, because it took several months to obtain a Gladue report. The trial judge [page434] expressed concern about the delay and requested that counsel obtain an explanation from Aboriginal Legal Services ("ALS"). The appellant brought an application under s. 11( b ) of the Charter raising two periods of delay, one pre-conviction and one post-conviction. The application was heard together with sentencing submissions.

15The pre-conviction delay was 39 months, while the delay between conviction and sentencing was 13 months. Most of the pre-conviction delay occurred prior to the release of the Supreme Court's decision in R. v. Jordan, 2016 SCC 27. The application was also determined before this court's decision in R. v. Charley (2019), 147 O.R. (3d) 497, 2019 ONCA 726, which established a five-month presumptive ceiling for delay between verdict and sentencing.

16The trial judge dismissed the s. 11( b ) application. With respect to the pre-conviction delay, he focused on one area of contention -- a nine-month period between the scheduled first appearance date when the appellant, who lived on a remote reserve in Northern Ontario, failed to attend court in Ottawa, and the date when he was re-arrested under a bench warrant and brought to court. The trial judge concluded that this period should be deducted entirely from the overall delay; the appellant, although blameless, was not entitled to any form of remedy for the nine-month delay which was not the fault of the Crown.

17With respect to the post-conviction delay, the trial judge concluded that a six-month delay in the sentencing hearing when ALS had not received the request for a Gladue report was due to an administrative error and should be deducted as a discrete exceptional event, and that the further delay (which he calculated as seven months) was due to the complexity of the Gladue report.

E. Issues on Appeal

18The appellant raises the following issues on appeal:

(1) Did the trial judge err in his treatment of the evidence about the lodged tampon? (2) Did the trial judge err in refusing a stay of proceedings because of pre-conviction delay? (3) Did the trial judge err in dismissing the s. 11 ( b ) application finding no unreasonable post-conviction delay? (4) Should the appellant's sentence be reduced, or its enforcement stayed? [page435]

(1) The trial judge's treatment of the lodged tampon evidence

19The appellant submits that the trial judge erred by determining that the complainant's tampon could not have been lodged by her own hand and that there was no plausible inference from the evidence other than sexual intercourse that could account for it. According to the appellant, the trial judge, who was not a medical expert, was not entitled to reject the appellant's evidence as a physical impossibility. The appellant argues that this finding was important to the conviction such that it would be unsafe to uphold the conviction because of the trial judge's other findings.

20The appellant seeks to introduce as fresh evidence on this issue a letter from a gynecologist, Dr. Zaltz, as an expert report on the causes and symptoms of lodged tampons. Dr. Zaltz's brief letter states that a lodged tampon does not prove that there was penetration with a penis and that other causes of lodged tampons include the insertion of any object that pushes the tampon to the back of the vagina or spontaneous displacement of a tampon. Further, a lodged tampon can cause discomfort and soreness in the vagina and a foul vaginal odour. Dr. Zaltz observes that there is no scientific or medical literature on lost tampons, other than on toxic shock syndrome, a complication related to retained tampons.

21The Crown asserts that the proposed expert report does not meet the test for fresh evidence: the appellant could have led this evidence at trial and there is no explanation as to why defence counsel did not do so. Furthermore, the Crown says that the evidence, had it been available, would not have made a difference to the outcome of the trial, and that in any event the evidence to support a conviction was overwhelming.

22I agree with the Crown. The proposed expert report does not meet the test for fresh evidence under Palmer v. The Queen, at p. 775 S.C.R. An opinion such as the one offered by Dr. Zaltz could have been adduced by the defence at trial with a view to supporting the defence position that the tampon could have become lodged in the complainant's vagina when, as the appellant testified, she had put her own fingers into her vagina during their encounter in the tent. In any event, as I will explain, the information contained in the letter lacks the cogency required for the admission of fresh evidence, as it would not have made a difference to the outcome of the trial.

23Contrary to the appellant's argument, the trial judge did not reject the defence position about how the tampon became [page436] lodged in the complainant's vagina as being physically impossible, but he instead concluded that it was unlikely in the circumstances that the complainant would have done this herself. He said, in explaining the basis for rejecting the appellant's evidence and in reference to the evidence that the complainant experienced vaginal soreness and that her tampon was lodged: "These pieces of evidence cannot have resulted from the complainant's own hand as the accused implies. The idea that a woman, in seeking to pleasure herself, would force a tampon so far up her vagina that it could only be found and extracted days later by a medical professional is unbelievable" [at para. 38]. He also found [at para. 42] that there was "no other plausible inference available on the evidence or the absence of evidence that could account for those physical effects". His rejection of the defence theory that the tampon could have become lodged by the actions of the complainant herself was based on his conclusion that this was unlikely in the circumstances of the case. The issue the trial judge determined was not whether it was physically impossible for a tampon to become lodged other than through sexual intercourse, but whether he was satisfied that this happened in the circumstances of this case. He did not err in his treatment of this issue.

24The trial judge's other findings support the conviction. He accepted the evidence of F.N. and C.N. and the appellant's admission to F.N. that he had sexual intercourse with the complainant, and he provided a number of reasons for rejecting the appellant's evidence. The trial judge did not err in making the findings that he did on the tampon evidence. Even if he had, the fresh evidence is not so significant in light of the other evidence from the witnesses, that the trial judge accepted, that it could reasonably be expected to have affected the result.

25Accordingly, I would reject this ground of appeal.

(2) The pre-conviction delay

26The information was sworn on July 25, 2014. The appellant's trial concluded on October 23, 2017. After subtracting 7.5 months of defence delay (which is conceded), the net pre-conviction delay was 31.5 months, which exceeds the 30-month presumptive ceiling under Jordan by 1.5 months.

27The only period of delay at issue is a nine-month period between October 29, 2014, when the appellant failed to attend court pursuant to a promise to appear, and July 30, 2015, when he was re-arrested on a bench warrant. The appellant contends that the trial judge erred in treating the delay as inconsequential, and in not conducting a full Jordan analysis. [page437]

Facts

28The appellant was arrested by military police on July 16, 2014 at his residence at a fly-in reserve in Northwestern Ontario. He was released on a promise to appear requiring his attendance at the Ottawa court on October 29, 2014.

29According to the appellant's affidavit on the s. 11 ( b ) application, he was unable to travel to the Ottawa court because of the cost. He stated that a community legal worker gave him a number to call in Ottawa, although he did not say when he obtained the number. The appellant called the number on October 29, 2014, the date of his scheduled first appearance, and explained that he was unable to come to court, although he wanted to be there as he knew he was required to attend court. The appellant was told by the person he spoke to that he had no choice but to be there, that if he did not attend, there would be a warrant for his arrest, and that there was nothing they could do.

30According to the transcript of proceedings on October 29th, duty counsel informed the court that she had received a call from the appellant and that he was not in the area. She related that she had told the appellant that "it was unlikely that anything could happen, but that [she] could appear for him, and most likely a bench warrant would be issued". The presiding justice issued a bench warrant for the appellant's arrest.

31Nine months later, the appellant, who had continued to reside at home, was re-arrested by military police pursuant to the bench warrant, charged with failing to attend court (the charge was later withdrawn), and transported to Ottawa where he appeared in court on August 4, 2015. He retained counsel, found a surety, and was released from custody on August 7, 2015. In accordance with his bail conditions he lived in Toronto with his surety.

32Counsel appeared on the appellant's behalf pursuant to a designation of counsel for all court appearances after August 7, 2015, except for the preliminary hearing and the trial, which the appellant attended in person.

The trial judge's reasons

33Dealing with the nine-month pre-conviction delay, the trial judge addressed the defence argument that the Crown or the administration of justice ought to bear responsibility for the consequence of the fact that the appellant was required to appear in Ottawa court in October 2014 when he was known to live in a remote area in Northwestern Ontario, and that in this context [page438] the state had some responsibility to move the matter forward by facilitating his transportation from his residence to Ottawa.

34The trial judge concluded that, although he was sensitive to the appellant's circumstances, the delay resulted from the operation of geography rather than the operation of law or as a consequence of any state decision or act. He could not conceive of how the administration of justice could be set up or resourced so as to mitigate the effects of this reality. Therefore, he treated the delay as inconsequential, and not a delay created by the Crown. The trial judge concluded:

The simple reality is that [the appellant] was alleged to have committed an offence here in Ottawa. Our law would direct that the trial was to happen in Ottawa, and as I say, the fact that he could not get himself here to attend court as required is something for which I hold him blameless, but about which I am unconvinced that he is entitled to any form of remedy. I take that chunk of time essentially out of the mix and pretend like it didn't happen.

Positions of the parties

35The appellant contends that the trial judge erred in treating the entire nine months between October 29, 2014 and August 4, 2015 as "inconsequential", and in failing to conduct a full Jordan analysis. The appellant says that because the Crown has a duty to bring an accused to trial, and in light of the trial judge's finding that he was "blameless" in not attending court, none of the delay is attributable to the defence. The appellant points to the fact that there was no evidence from the Crown to explain why it took nine months for the military police to re-arrest him pursuant to the bench warrant, and he says that in these circumstances the Crown is unable to justify the delay under the transitional exceptional circumstance analysis.

36The Crown submits that the entire nine-month delay resulted from the appellant's failure to appear pursuant to a promise to appear, and should therefore be deducted as defence delay. There were steps that the appellant could have taken to mitigate the delay. The Crown asserts, in the alternative, that at least four or five months of the nine-month period should be deducted as defence delay. In the further alternative, the Crown argues that the delay above the 30-month presumptive Jordan ceiling is justified under the transitional exceptional framework.

37While I would not adopt the trial judge's reasoning, in my view, the delay that exceeds the presumptive 30-month ceiling is justified. I will explain why, although some of the nine-month period could be characterized as defence delay, it is preferable and sufficient on the record in this case to address the delay under the transitional exceptional circumstance analysis. [page439]

Defence delay

38The parties rely on competing duties that they say apply here: the obligation of the Crown to bring an accused to trial, and the duty of an accused who is obliged to attend court to avoid causing unnecessary delay.

39The appellant seeks to put responsibility for all or most of the nine months of delay on the Crown, relying on the approach taken in R. v. MacIntosh, 2011 NSCA 111, affd 2013 SCC 23. MacIntosh involved a delay of many years in bringing an accused to trial. The accused left the country while he was under investigation, but before any charges were laid. The Nova Scotia Court of Appeal held that the delay that accrued while the accused was out of the country pending extradition did not constitute defence delay. The court relied on the absence of any duty on the part of the accused to bring himself to trial, noting as well that there was "no common law duty to assist the police": at paras. 47-49.

40The Crown asserts that the appellant is responsible for the nine months of delay because it followed on the appellant's failure to attend court pursuant to a promise to appear. Defence delay includes any period when the court and Crown are ready to proceed and the accused is not: Jordan, at para. 64. Moreover, the Supreme Court in Jordan emphasized that illegitimate defence delay includes defence inaction: at paras. 113, 121; see also R. v. Cody, 2017 SCC 31, at para. 33. Although the trial judge characterized his conduct as "blameless", the appellant could and should have taken steps to mitigate the delay, including having advised sooner than the day of his first appearance that he was unable to attend court.

41The Crown relies on this court's decision in R. v. Burke, 2018 ONCA 594, which characterized the many years of delay from when charges were laid until the time the respondent was returned to Canada as illegitimate defence delay. The respondent had fled the country shortly after his arrest, in violation of his bail, with the express purpose of avoiding prosecution. This court held, at para. 12, that notwithstanding that the Canadian authorities could have taken steps to extradite the accused as early as 2003, the delay was caused directly by the respondent, whose actions were not taken to respond to the charges, but were intended to frustrate them. The Crown asserts that, similarly, all of the delay that followed the appellant's failure to attend court when he was required to do so pursuant to the notice of appearance is defence delay, even if [page440] the police could have attended sooner to execute the warrant. Moreover, the appellant's failure to contact the Crown's office until the day he was to attend court was defence inaction that caused delay.

42There are differences between the present case and both MacIntosh and Burke. MacIntosh involved an accused who was under no legal obligation to return to Canada until his extradition, whereas the appellant had a legal obligation to attend court, arising from his promise to appear. And in any event, the court in MacIntosh, which was a pre-Jordan case, characterized some of the delay (four years involved in the extradition process) as inherent delay: at para. 106. And, in the present case, unlike Burke, the trial judge accepted that the appellant, who had advised duty counsel of his whereabouts and that he was unable to attend court, had not attempted to frustrate the charges or to flee. Rather, although the appellant was unable to attend court, his whereabouts were known and he remained at the location where he was first arrested until the warrant was executed nine months later.

43Under the former Morin framework (R. v. Morin), the delay in executing a bench warrant following an accused's failure to attend court was sometimes treated as defence delay, sometimes as shared delay (defence and Crown) and sometimes considered to be inherent delay. See the cases cited at Géolier v. R., 2018 QCCS 4637, at footnotes 13 and 14. In some cases, even where the delay in executing the warrant is unexplained, courts have characterized all or most of the delay as defence delay. See, for example, R. v. Brackenbury, 1988 ABCA 41; R. v. Rickett, 2012 ABPC 52 and the post-Jordan case, R. v. Dumais, 2019 ABPC 23. Other cases have resulted in a stay of proceedings where the Crown was found to be responsible for all or part of the delay in executing the warrant, notwithstanding an initial failure to appear, once the accused's whereabouts were known. This is especially the case where the Crown's delay in executing the warrant is unexplained: see, for example, R. v. Ryan; R. v. Pelletier, 2013 NBPC 5; and R. v. Unka, 2005 NWTSC 15.

44This case does not fit comfortably into the analysis in the existing jurisprudence. Is it defence delay when an accused fails to attend court pursuant to a promise to appear for reasons beyond their control? Here the trial judge concluded that the appellant could not be faulted for failing to attend court as required, and I agree with this assessment. While it is conceded [page441] that it would take some time for the military police to execute the bench warrant, there was no evidence to explain why it took nine months. At the same time there was no evidence to explain why the appellant waited until the day of his court appearance to advise that he was unable to attend court. Arguably he could have mitigated the delay by notifying duty counsel in advance of his court date, by applying for Legal Aid, or by retaining counsel to appear on his behalf, such that his failure to do so amounted to defence inaction.

45This is not an appropriate case in my view to weigh the competing arguments respecting defence and Crown responsibility for delay which arises after an accused fails to attend court and while a bench warrant is outstanding. Unlike many of the cases where this question has arisen, the resulting delay within the overall framework is quite short. And, in the present case -- where most of the pre-conviction delay pre-dated Jordan, where the appellant acknowledges that, but for the nine-month delay in question the proceedings went relatively smoothly, and where the overall delay exceeds the Jordan cap by only 1.5 months, it is preferable to address the delay caused by the nine-month period under the transitional exceptional circumstances heading.

Transitional exceptional circumstances analysis

46While the trial judge noted that this was a transitional case, he did not go on to consider whether the transitional exceptional circumstances analysis applied. I note that the entire nine-month bench warrant period (October 29, 2014 to July 30, 2015) occurred prior to the release of Jordan. Accordingly, a transitional exceptional circumstance applies if the Crown can demonstrate 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": Jordan, at para. 96.

47The Crown points out that, even if the entire nine-month period while the appellant was on bench warrant status is counted as Crown delay, the total institutional and Crown delay in this case was slightly over 17 months, and accordingly did not exceed the Morin guideline. The Crown contends that the delay above the Jordan ceiling can be justified under the transitional exceptional circumstance analysis. The appellant contends that, in the absence of any evidence by the Crown as to the reasons why [page442] it took nine months for the military police to execute the bench warrant, none of the delay during that period can be justified.

48In R. v. C.-P. (J.), 2018 ONCA 986, at para. 21, this court reiterated the factors that inform the transitional circumstance analysis. These include: (i) the complexity of the case; (ii) the period of delay in excess of the Morin guidelines; ( iii) the Crown's response, if any, to institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused.

49This case was not complex. There were three Crown witnesses, including the complainant. Only the appellant testified for the defence. The evidence went in in four days and judgment was given orally on the fifth day of trial. The overall delay did not exceed the Morin guideline of 18 months for a trial in the Superior Court. According to a chart attached to the appellant's factum that characterizes the periods of delay in this case, the period of Crown and institutional delay (including the nine-month period) is just over 17 months. While it would have been preferable to have evidence from the Crown to explain why it took nine months for the military police to execute the bench warrant, the appellant acknowledges that some delay in executing the warrant would be reasonable.

50The appellant also acknowledges that his delay in notifying the Crown of his inability to attend court is relevant to the assessment of whether the delay is justified as a transitional exceptional circumstance. He knew of his scheduled court date for over three months, yet he waited until the day he was supposed to be in court, by which time it was too late to arrange for his transportation so that he could attend on the first appearance date. This conduct is inconsistent with a desire to move the proceedings forward, or at least amounts to acceptance of a "wait and see" approach. Nor is there evidence of prejudice to the appellant resulting from the delay. He continued to reside in his home under a promise to appear and without restrictive bail conditions.

51As I have explained, the law prior to Jordan on the attribution of delay in executing a bench warrant following the accused's failure to attend court sometimes treated such delay as defence delay, sometimes as shared delay (defence and Crown), and sometimes as inherent delay. The Crown might reasonably have anticipated in light of these cases that at least some of this delay would be considered defence delay or inherent delay, but as I have explained, even if this entire period were attributed to the Crown or institutional delay, the overall Crown and institutional delay would still fall within the Morin guidelines. [page443]

52Finally, apart from the initial nine-month period, the appellant acknowledges that, after deducting 7.5 months for defence delay, the rest of the proceedings prior to his conviction "went smoothly" and without delay.

53After considering the relevant factors, I conclude that the pre-conviction delay attributed to the nine-month period of delay while the bench warrant was outstanding and resulting in a net delay of 1.5 months above the Jordan presumptive limit is justified under the transitional exceptional circumstance approach.

54I would therefore not interfere with the trial judge's conclusion that there was no violation of the appellant's s. 11( b ) right to trial within a reasonable time as a result of pre-conviction delay and I would dismiss this ground of appeal.

(3) The post-conviction delay

55The second period of delay to consider is the 13 months between the date of the appellant's conviction on October 25, 2017 and his sentencing on November 21, 2018.

Facts

56On October 25, 2017, the trial judge convicted the appellant, ordered both a Gladue report and a pre-sentence report, and adjourned the matter to a January 5, 2018 status court. There were several appearances in status court before sentencing was scheduled, mainly to check on the progress of the Gladue report.

57On January 5, the matter was adjourned to February 2, after defence counsel indicated"We've not received the reports at all, nor any indication as to the process." On February 2, the court was informed by defence counsel that the appellant had yet to be contacted to schedule an interview, and the parties agreed to an adjournment to April 6. According to an affidavit filed on behalf of the appellant, his counsel made several inquiries of the court and ALS as to the status of the Gladue report. Initially it was very difficult to get any information, until it was eventually determined that ALS, for an unknown reason, had never received the court's order for a report. On April 5, defence counsel sent a request form to ALS for the Gladue report, and on April 6, the matter was adjourned to the next assignment court as the appellant had just been seen for the report. On May 9, the Gladue report writer wrote to the court to advise on the progress of the report, and to request that the sentencing be adjourned to June 18 or later to allow her to conduct further interviews with the appellant and to schedule interviews with [page444] his supports. At the May 11 court, the matter was set for sentencing on August 30, 2018.

58On August 13, the report writer advised defence counsel that she would try her best to have the report prepared a few days prior to the sentencing however the report was delivered late the night before, prompting a defence request for an adjournment. The trial judge advised that the report was late, and that its lateness may well factor into sentence, and he asked for an explanation for the delay in providing the report. He adjourned the sentencing to November 16, which was his next available date (because he was presiding over a murder trial). The sentencing was adjourned again at the defence request so that a s. 11 ( b ) application could be brought at the same time.

59By letter dated September 5, 2018, Jonathan Rudin, Program Director for ALS, provided an explanation for the delay in providing the Gladue report. ALS received a report request from defence counsel on April 5, 2018, but was unaware that a report had been ordered by the trial judge until speaking with the Crown on May 9, 2020. Mr. Rudin stated that it was generally their practice not to submit Gladue reports a month or two in advance of a sentencing hearing because it is important to provide the court with up-to-date information. He explained that time was required to arrange calls and meetings with the appellant and his collaterals. Finally, he indicated that the report author was working on 19 other reports between the time the request was received and her completion of the report.

The trial judge's reasons

60The trial judge viewed the post-conviction delay period as having two parts. He attributed the first six months of delay, when ALS had not received the request for a Gladue report, to a discrete communication or clerical error rather than a systemic failure. This he treated as an exceptional circumstance. He stated:

My view is, in reviewing the materials filed, that the six months of time attributable to this clerical error is a discrete event. It strikes me as human error, a breakdown in communication, and while it is unfortunate, I see it as the sort of discrete event or one off that happens when the human enterprise of the administration of justice is engaged. Human beings, being fallible, will occasionally fail.

I say this because I distinguish it from a resourcing issue where decisions are made by people in charge who can make things happen or not, who set up a system that doesn't work. It does not strike me that that is the case here. It seems simply that there was a breakdown in communication, that someone dropped the ball, and I see that as unfortunate but different than a systemic failure. [page445]

61The trial judge attributed the remaining period of seven months to the level of complexity in preparing the Gladue report. He said:

The remaining six to seven months it took to essentially write the report is, in my view, having read the report and come to appreciate it, attributable to the exceptional complexity that this particular case has. I say this for this reason. I have read many Gladue reports in many cases. Some of them are quite slim in that many aboriginal offenders know virtually nothing about their aboriginal heritage through reasons usually attributable to the disconnectedness they have from it as a result of all the different historical facts that we have come to learn about since the Sinclair Commission.

This one is not that. It is . . . 40 plus pages and it strikes me as incredibly dense and deep. It is, to use a colloquial term, a very deep dive into [J.K.'s] life. I found it very well done, very comprehensive and, frankly, I was not surprised that it took as long as it did.

62Accordingly, the trial judge concluded that no s. 11 ( b ) breach had occurred.

Positions of the parties

63The trial judge did not have the benefit of this court's decision in Charley, in which the court established a five-month presumptive ceiling for sentencing delay. The appellant argues that, in light of Charley, the post-conviction delay was unreasonable.

64The appellant submits that, with respect to the first period of delay, the trial judge erred in concluding that the administrative error was an exceptional circumstance, in the absence of considering whether the delay could have been reasonably mitigated by the Crown and the justice system. The appellant says that it appears that none of the defence, the Crown or the trial judge made any efforts to ensure prior to January 5, 2018 that the process of writing the Gladue report had commenced. Even when defence counsel appeared and advised that there were no indications as to progress on January 5, 2018, the Crown seemed content to let the matter drift and failed to express any concern about delay until August 30, 2018 when the defence was compelled to seek an adjournment. Nor does the record demonstrate any inquiries by the trial judge to ensure that his order had been received and was being acted upon.

65With respect to the second period of post-conviction delay the appellant points out that the trial judge erred in saying that the Gladue report took six or seven months to complete. In fact, from the day ALS received the defence request, the report took four months and 25 days to complete. The appellant points to the information provided in response to the trial judge's request indicating that the author of the report completed 19 other [page446] Gladue reports during that time. The appellant contends that it is the Crown's responsibility to ensure that sufficient resources are in place for Gladue workers to prepare their reports on a timely basis.

66The appellant seeks a reduction in sentence as a remedy for post-verdict delay. See R. v. Hartling (2020), 150 O.R. (3d) 224, 2020 ONCA 243, at para. 119. In that case, a delay of 14 months in the production of a Gladue report occurred because of institutional limitations. Mr. Hartling was accorded credit in his sentencing as a remedy for breach of his s. 11 ( b ) rights. The appellant here claims that the delay should be considered as an enhanced mitigating circumstance leading to a reduction in sentence.

67The Crown argues that there is no error in the trial judge's analysis of the post-conviction periods of delay: the first period was due to an administrative error, there was no indication that anyone believed the order had not been received, and it was assumed the appellant would be contacted by ALS in due course. The trial judge correctly considered the delay to be an exceptional circumstance. In contrast to Hartling, the lengthy delay was not due to institutional limitations. Once the request was received by ALS, the report was prepared within five months. The Crown submits that the trial judge was correct in his assessment of the report as thorough and comprehensive: the 45-page report was prepared after six in-person interviews and one phone interview with the appellant and additional interviews with three collaterals. The further delay resulted from the report having been sent the night before the sentencing. The Crown relies on the transitional exceptional circumstance analysis: the parties were operating in a pre-Charley environment, and would reasonably have understood that the time needed to prepare the report would be treated as inherent time or that some additional time would be warranted.

Discussion

68A discrete exceptional circumstance is (1) reasonably unavoidable or unforeseeable on the part of the Crown; and (2) unable to be reasonably remedied when it arises: Jordan, at para. 69. In my view, the first period of post-conviction delay, when ALS had not received the judge's order for a Gladue report, meets this test. The trial judge concluded that there was administrative error with an unknown source, and this is consistent with the evidence. The Crown was unaware of the error. While it was incumbent upon the Crown to minimize the delay resulting from the error, there is no suggestion that -- had the Crown [page447] made more prompt inquiries about the status of the report -- it could have discovered the error sooner or mitigated its effect. As noted above, an affidavit filed on behalf of the appellant explains that, prior to discovering the error, defence counsel had made several inquiries of the court and ALS about the report but found it difficult to get any information. In my view, the administrative error qualifies as reasonably unavoidable or unforeseeable, and, in the circumstances of this case, it could not have been reasonably remedied once it arose. By the time the parties learned of the error, much of the delay had already occurred. The parties took appropriate action to move the matter forward once they learned of the error.

69Subtracting the delay attributable to the administrative error as a discrete exceptional event leaves approximately 7.5 months of post-conviction delay. Even if the administrative error were not characterized as a discrete exceptional circumstance, all of the post-conviction delay in excess of the Charley ceiling is justified as a transitional exceptional circumstance.

70In Charley, Doherty J.A. held that the transitional exceptional circumstance applies to sentencing proceedings, writing, 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.

71In my view, the fact that this was a transitional case explains the parties' conduct throughout. Prior to the release of Charley, the parties -- and the Gladue report writer -- had no reason to think that they were working with a five-month presumptive time limit.

72The delay in production of the Gladue report was not due to institutional limitations. It is troubling that it took so long for the parties to discover the problem with the Gladue order. The record suggests some level of indifference on the part of both the Crown and the defence for several months following the appellant's conviction. In January and February 2018, defence counsel was apparently content with how the matter was proceeding, and did not put concerns about delay on the record.

73In my view, the parties' attitudes are explained by the fact that this is a transitional case. Their approach to the initial delay reflects their reliance on the previous state of the law. Defence [page448] counsel discovered the problem with the Gladue order in April 2018, and she took the initiative to send in her own request.

74Once the problem with the Gladue order had been resolved, the matter was more or less back on track. The Gladue report was completed on August 29, just under five months after defence counsel sent her request to ALS. Had the Gladue report writer been operating post-Charley, she might well have completed the report sooner, to avoid an adjournment. However, even operating in the pre-Charley world, she completed the report within the five-month ceiling.

75Further, had the sentencing proceedings in this case occurred after the release of Charley, the court and the parties likely would have made greater efforts to prioritize scheduling of the sentencing hearing after the Gladue report was finished. The sentencing hearing was delayed for two months after completion of the Gladue report because the trial judge was sitting on a murder trial. Had the court and the parties been aware of the five-month ceiling, they might have found a way to obtain an earlier date.

76I also note that the defence brought a s. 11( b ) application in the two months between the completion of the Gladue report and the sentencing hearing. This was a legitimate step by the defence. The s. 11 ( b ) application had merit and I do not intend to suggest that this should be considered defence delay. However, in my view, under the Morin framework, these two months of delay would arguably be considered necessary preparation time for the s. 11 ( b ) application, rather than institutional delay, given that defence counsel would not have been able to proceed with the s. 11 ( b ) application immediately.

77For these reasons, I would dismiss this ground of appeal.

(4) The fitness of the sentence

78Finally, although the trial judge found no breach of s. 11 ( b ) with respect to the post-conviction delay, the trial judge accounted for the delay as a mitigating factor on sentencing.

79In his reasons for sentence, the trial judge observed that the appellant had suffered prejudice as a result of restrictive bail conditions pending trial and sentencing:

I also note that he has been compliant with bail for quite a long time, having been obliged through the circumstances to live in Toronto. I see that as a significant imposition on his liberty interest and disagree with the Crown that it is an opportunity that he has been making the best of, et cetera. I see this more through the lens of what was advocated from the defence side and that it is him simply making the best of a bad situation, that he would far rather be home. . ., living according to his traditional belief system, and the fact that he is obliged to live in the largest city in the country has been, in these [page449] circumstances, something of a negative experience. He is also cut off from his family and that undoubtedly has had a significant impact upon him.

80The trial judge recognized this as a mitigating factor "worthy of driving the sentence downward", and explicitly considered it again in imposing a reduced sentence of two years. Although this is not the "enhanced mitigation" for a s. 11 ( b ) breach referred to in Hartling, in my view, it reflects the fact that the trial judge was sensitive to the prejudice experienced by the appellant as a result of the delay in the proceedings and appropriately took that into account in imposing sentence.

81The appellant also seeks a further reduction in his sentence or that the sentence be stayed in light of the fresh evidence of his personal circumstances since being sentenced. He submits that reincarceration would be counterproductive to the rehabilitative steps he has taken and continues to take since being released on bail pending appeal.

82The Crown opposes any reduction in the sentence, asserting that the trial judge gave detailed and thoughtful consideration to the aggravating and mitigating circumstances in arriving at a just sentence. In so doing he took into consideration the progress the appellant made while on bail, which is essentially the same information that is contained in the fresh evidence.

83I agree. The trial judge considered the aggravating circumstances: he recognized that the forced intercourse was a very significant assault on the physical integrity of the complainant who was incapacitated by alcohol. The sexual assault was an opportunistic breach of trust and the appellant's bragging about a "sexual conquest" was misogynistic and an aggravating factor. He also considered the mitigating factors: the fact that the appellant had no criminal record; the disinhibiting effect of alcohol leading to behaviour that was out-of-character for the appellant; the Gladue report which the trial judge described as "quite impactful on sentence" and "of tremendous value"; the appellant's history of negative personal experiences; and letters of support. And, as noted above, the trial judge referred to the fact that the appellant had been compliant with bail, and had been living in Toronto, cut off from his family and his home.

84The two-year sentence of incarceration is a fit sentence. The Crown was seeking a sentence of three years in custody, while the defence sought a non-custodial sentence of probation and a series of rehabilitative terms or a custodial sentence of two years. The trial judge took into consideration all of the aggravating and mitigating circumstances when he concluded that, but for the appellant's unique circumstances, including Gladue considerations, the absence of a criminal record, the progress the [page450] appellant made while on bail and the length and effect of the appellant's conditions of bail, the Crown's requested sentence of three years would have been appropriate.

85The appellant's fresh evidence indicates that he has continued with the rehabilitative steps that he was taking at the time of sentencing. While this is positive and encouraging, this does not justify a reduction of sentence in the circumstances of this case. Nor is it in the interests of justice to stay any portion of the execution of the sentence: see R. v. Cowell (2019), 151 O.R. (3d) 216, 2019 ONCA 972, at para. 111, leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 54.

F. Disposition

86For these reasons, I would dismiss the conviction appeal and the sentence appeal.