Court of Appeal for Ontario

Date: 2024-12-20 Docket: COA-22-CR-0438

Before: Trotter, Favreau and Gomery JJ.A.

Between: His Majesty the King Respondent

And: R.B.-C. Appellant

Counsel: Mark C. Halfyard and Robert Nanni, for the appellant Brett Cohen, for the respondent

Heard: June 12, 2024

On appeal from the conviction entered by Justice Nicole E. Redgate of the Ontario Court of Justice on October 7, 2021, and from the sentence entered on December 16, 2022.

Favreau J.A.:

A. Introduction

1The appellant was convicted of sexual assault. He received a conditional sentence of two years less a day, followed by one year of probation.

2The appellant raises three grounds of appeal in relation to the conviction: a) the trial judge reversed the burden of proof, b) the trial judge misapprehended the evidence, and c) the trial judge erred in her consent analysis. The appellant also appeals his sentence, arguing that the trial judge erred in dismissing his post-conviction application brought under s. 11(b) of the Canadian Charter of Rights and Freedoms.

3I see no error in the trial judge’s conviction decision. However, I would allow the sentence appeal because the trial judge erred in dismissing the s. 11(b) Charter application. By way of remedy, I would reduce the length of the conditional sentence from 2 years less a day to 20 months.

B. Conviction Appeal

(1) Background

4The alleged sexual assault occurred the night of August 7 to August 8, 2019.

5At the time, the appellant and the complainant were both Ph.D. students at a university in Ontario. They had recently started dating.

6On August 7, 2019, the appellant was housesitting for one of his professors. The appellant and the complainant planned to go to a bar together, and to then spend the night at the professor’s house.

7After arriving at the professor’s house, they went to the guest bedroom and engaged in consensual sexual activity. The complainant and the appellant gave consistent evidence regarding what happened during this first part of their sexual encounter, which included kissing, foreplay and oral sex. The complainant and the appellant then attempted vaginal intercourse. The appellant was not able to maintain an erection during the attempted penetration. The complainant then went to the bathroom to brush her teeth and take her contact lenses out. She returned and got into bed, and then kissed the appellant goodnight.

8The evidence of the complainant and the appellant diverge after this point in the evening.

9The complainant testified that the appellant wanted to resume the sexual activity but she said “no”. The appellant then asked if he could massage her, to which she agreed but then asked him to stop when it became sexual. They then lay in bed in a spooning position.

10The complainant testified that, after this, the appellant continued to try to engage in sexual activity by touching her breasts and thrusting his pelvis in her back. She asked him to stop, and he would stop but then resume his attempts. At one point, the complainant told the appellant that she did not understand why he was not stopping and why he did not understand the meaning of “no”. The complainant testified that the appellant’s ongoing sexual advances lasted one to two hours. At some point, she started pretending to be asleep while the appellant continued thrusting his pelvis into her back. The appellant eventually ejaculated on her back and side. The appellant then got up and returned soon after to wipe ejaculate off the complainant. The complainant continued to pretend that she was asleep.

11The next morning, the appellant drove the complainant home. As they were leaving the professor’s house, the appellant told the complainant that, in his culture, sex was more shameful and that she should have been more sensitive to his perspective. The complainant reported the incident to the campus police a few days later.

12When the appellant testified, he said that he did not tell the complainant that he was a virgin and lacked sexual experience prior to their sexual encounter. He testified that, during the first part of the encounter, the complainant grabbed his penis to push it into her vagina and that this caused him to lose his erection. This made him feel extremely uncomfortable. After this, the complainant told him that she wanted to go to sleep.

13The appellant testified that the complainant then got up to go to the bathroom, returned, got back into bed, and they started spooning.

14He said that he did not offer to give the complainant a massage. Rather, his evidence is that, after the complainant came back to bed and they started spooning, he caressed her. He told her that her hair smelled good and she thanked him. He then got an erection. He testified that “his penis found its way to her crotch”, and she said “no”. The appellant testified that he immediately tried to pull his penis away from the complainant’s crotch area, but he lost control and involuntarily ejaculated on her back. He then got up and cleaned the ejaculate off the complainant, after which she thanked him.

15The next morning, the appellant told the complainant he was a virgin, and he apologized for losing his erection and for his unexpected ejaculation. He told the complainant she did not know his culture and background. When they got to her residence, he apologized again for being unable to maintain his erection, and she kissed him goodbye.

(2) The trial judge’s conviction decision

16The complainant and the appellant were the only witnesses at trial.

17After reviewing the evidence and the applicable law, the trial judge started her analysis with the issue of consent. She found that she was satisfied beyond a reasonable doubt that the complainant did not consent to any sexual activity after she returned to bed.

18The trial judge then considered the appellant’s credibility. She stated that his evidence was “neither impressive nor unimpressive”, that his demeanour was “unremarkable”, that his answers on cross-examination “did not appear evasive” and that he “did not contradict himself”. She also found that his evidence regarding the first part of the sexual encounter was candid and detailed. However, she did not believe his evidence regarding how his “penis found its way to [the complainant]’s crotch area” and about how quickly he ejaculated at that point. She explained that this evidence lacked the same detail as his evidence regarding the consensual part of the sexual encounter, and that it lacked an air of reality.

19The trial judge then instructed herself that, even if she did not believe the appellant’s evidence, she had to consider it in the context of the complainant’s evidence. She found that there were some small discrepancies between the complainant’s and the appellant’s evidence that were immaterial, and two others that she was able to resolve upon closer examination. Ultimately, the trial judge found that the complainant’s evidence was “internally consistent” and that she was “unshaken” in her testimony regarding what occurred, and on this basis, she was satisfied that the complainant’s testimony was both credible and reliable.

20The trial judge concluded that, given that she accepted the complainant’s evidence, she rejected the appellant’s conflicting evidence, and on this basis found that she was not left with a reasonable doubt.

(3) Analysis

21The appellant raises three grounds of appeal in relation to his conviction:

a. The trial judge reversed the burden of proof when analyzing the appellant’s evidence;

b. The trial judge misapprehended two aspects of the evidence at trial; and

c. The trial judge erred in her analysis on the issue of consent.

22After hearing submissions from the appellant on the conviction appeal, the court did not call on the Crown to respond to this aspect of the appeal.

23Before addressing the specific grounds of appeal, it is helpful to remember that a trial judge’s findings of credibility are to be given significant deference and assessing credibility is not a scientific exercise: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81. Absent an error of law, findings of fact and credibility should be overturned on appeal only where there are palpable and overriding errors: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 82.

Issue 1: The trial judge did not reverse the burden of proof

24The appellant points to the paragraph in the trial judge’s reasons where she rejects his evidence regarding the circumstances under which he ejaculated to support his submission that the trial judge reversed the burden of proof. The trial judge explained that she rejected the appellant’s evidence on this issue because it lacked detail and because it did not have an air of reality:

I am not, however prepared to accept the defendant’s account of how his ‘penis found its way’ to [the complainant]’s crotch area and that he immediately removed it after she said no, resulting in an involuntary ejaculation on her. The defendant did not provide details as to how it was that his penis ‘found its way to [the complainant]’s crotch area’. The lack of detail causes me concern as he was able to clearly articulate and explain other aspects of his actions without difficulty. I also find the short time from when his penis found its way to her crotch area and ejaculation implausible when compared to the rest of his evidence. I find that he attempted to minimize this aspect of his evidence, it lacks an air of reality, and I find it to be incredible.

25The appellant submits that the trial judge reversed the burden of proof because her reasons for rejecting his evidence suggest that the appellant should have provided more detail to demonstrate that his version of events was what really happened.

26I do not agree that the trial judge reversed the burden of proof. The trial judge focused on the lack of detail regarding how the appellant’s penis “found its way” to the complainant’s crotch area because his evidence on this key issue lacked the same level of detail as his evidence on the other parts of the sexual encounter. There was nothing improper in taking this contrast into consideration in assessing the appellant’s credibility. It was open to the appellant’s counsel to seek more details or information regarding this evidence. However, contrary to the appellant’s suggestion, it was not the role of the trial judge or the Crown to seek to elucidate more details from the appellant.

27The appellant also submits that the trial judge improperly relied on an ungrounded assumption when she stated that she found it implausible that the appellant would ejaculate so shortly after removing his penis from the complainant’s crotch area.

28When the appellant initially filed his factum, he relied on this court’s decision in R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289, to argue that this was an error of law. With the release of the Supreme Court of Canada’s decision in Kruk, the appellant acknowledges that this alleged error is to be reviewed on a standard of palpable and overriding error, because it does not engage myths and stereotypes about sexual assault complainants. As Martin J. explained in Kruk, at para. 75:

Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact-finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on “ungrounded” assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions.

29In this instance, the trial judge was again relying on the contrast between the appellant’s evidence about what occurred during the first part of the sexual encounter – which was consistent with the complainant’s account – and the second part, after the complainant returned to bed. The trial judge observed that she found it implausible that the appellant would have ejaculated in the short time it would have taken for him to remove his penis from the complainant’s crotch area if his penis had in fact just “found its way” to her crotch area and he had removed it immediately after the complainant said “no”. Clearly, she viewed the short time in which this unexpected ejaculation purportedly happened as inconsistent with the appellant’s evidence regarding the length of the consensual part of the encounter, at which time he did not ejaculate and lost his erection when attempting vaginal intercourse. I see no palpable and overriding error in this reasoning. It was based on an appreciation of the appellant’s evidence as a whole and does not warrant appellate intervention: see R. v. Donnelly, 2023 ONCA 243, at para. 46.

30I would dismiss this ground of appeal. The appellant has not shown that the trial judge reversed the burden of proof.

Issue 2: The trial judge did not misapprehend the evidence

31The appellant submits that the trial judge misapprehended two key pieces of evidence. First, he says that the trial judge failed to address the inconsistency between the testimony given by the appellant and the complainant about whether the appellant gave the complainant a massage after she came back to bed. Second, he submits that the trial judge mischaracterized the complainant’s evidence regarding whether the appellant apologized on the morning following the encounter. These alleged misapprehensions do not rise to the level of a miscarriage of justice.

32A miscarriage of justice occurs where “a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541. This is a stringent standard. The misapprehension must be about a substantial portion of the evidence and not a detail, and it must be material rather than peripheral to the trial judge’s reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

33Where misapprehended evidence is used to assess credibility, the issue of whether there has been a miscarriage of justice “turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment”: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at para. 36. If the trial judge mischaracterized parts of the evidence that were central to the credibility assessment, it is more likely that an appellate court will find a miscarriage of justice: Alboukhari, at para. 38; R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 15.

34The trial judge did not misapprehend the evidence regarding the massage. Rather, she simply did not address this discrepancy. Notably, defence counsel did not rely on this discrepancy in closing submissions. Whether or not a massage occurred played no role in the trial judge’s reasoning, or in her assessment of credibility. She was not required to address every discrepancy between the complainant and the appellant’s evidence, especially a discrepancy that was not central to the sexual assault: R. v. Tyrrell (2001), 139 O.A.C. 99 (C.A.), at para. 37; R. v. Dobson, 2009 ONCA 714, at para. 10.

35The judge did mischaracterize the complainant’s evidence regarding whether the appellant apologized the morning after the incident. However, this error does not rise to the level of a miscarriage of justice. In his testimony, the appellant said that he apologized in the morning. The complainant testified that she did not remember the appellant apologizing. In her reasons, the trial judge stated that the complainant’s evidence was that the appellant did not apologize at all. While the trial judge mischaracterized the complainant’s evidence on this issue, she did not try to resolve this apparent discrepancy, nor did she use it against the appellant. This minor misapprehension of the complainant’s evidence could not have affected the outcome.

36I would dismiss this ground of appeal. The appellant has not established a misapprehension of evidence rising to the level of a miscarriage of justice.

Issue 3 – The trial judge did not err in her consent analysis

37The appellant submits that the trial judge erred in her analysis on the issue of consent. First, he submits that the trial judge erred by addressing the issue of consent before she assessed the credibility of the complainant and of the appellant. Second, he submits that the trial judge improperly addressed the issue of honest but mistaken belief in consent when the appellant did not raise this defence. I do not accept that the trial judge made any reversible error on the issue of consent.

38First, there is an obvious explanation for why the trial judge started with the issue of consent before she assessed the credibility of the complainant and the appellant. She found that, even based on the appellant’s own evidence, there was no evidence that the complainant consented to any sexual activity after she returned to bed. Specifically, after reviewing the appellant’s evidence in which he admitted that the complainant did not say anything after returning to bed that suggested she consented to further sexual activity, the trial judge made the following finding:

On both the defendant and [the complainant]’s evidence, she had turned her back to him, did not physically reciprocate, and said nothing to communicate that she consented to his touching. I am satisfied that the Crown has proven non-consent of the actus reus of sexual assault as the there [sic] is no evidence that [the complainant] subjectively wanted the sexual activity in question. [Emphasis added.]

39No credibility assessment was required to make this finding that the complainant did not consent to further sexual activity.

40Second, while the appellant did not raise a defence of honest but mistaken belief in consent, the fact that the trial judge briefly addressed the issue did not cause the appellant any prejudice. As with the issue of consent, her factual findings on this point were grounded in the appellant’s own evidence:

In my view, the defence of honest but mistaken belief in consent does not apply. There is no evidence to support a finding that the defendant took reasonable steps to ascertain if [the complainant] wanted to engage in further sexual activity and there is no evidence to suggest that she said or did anything to express her agreement to further sexual activity. He cannot rely on mistake of fact as there is no air of reality to this defence.

41I see no error in the trial judge’s reasoning on the issue of consent and would dismiss this ground of appeal.

(4) Conclusion on the conviction appeal

42I would dismiss the conviction appeal. The trial judge committed no reversible error in her assessment of the evidence, including in assessing the credibility of the complainant and the appellant. Ultimately, she considered and accepted the complainant’s evidence, and used this in part as a basis for rejecting the appellant’s evidence, which she was entitled to do: R. v. D. (J.J.R.) (2006), 218 O.A.C. 37 (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69.

C. Sentence Appeal

(1) Introduction

43The sentence appeal focuses on the trial judge’s ruling dismissing the appellant’s post-conviction s. 11(b) Charter application.

44After the trial judge found the appellant guilty on October 7, 2021, she did not sentence the appellant until December 16, 2022, over 14 months later. At the time of sentencing, the appellant was in Canada on a temporary work permit.

45On October 20, 2022, the appellant brought an application under s. 11(b) of the Charter based on the post-conviction delay in imposing a sentence. On December 16, 2022, before delivering her reasons for sentence, the trial judge heard submissions on the s. 11(b) application. She dismissed the application with reasons to follow. In these reasons, released on March 9, 2023, the trial judge explained she had dismissed the application because she found that the delay was partly due to defence delay and partly due to exceptional circumstances arising from her own medical issues, from the complexity of the immigration issues on sentencing and from technical issues attributable to the COVID-19 pandemic. She concluded the total delay in sentencing amounted to 12 months, 13 days and that the net delay was of 304 days. Once the discrete exceptional circumstances were deducted, the resulting delay totalled 116 days, or just under 4 months.

46The appellant challenges the trial judge’s s. 11(b) ruling and argues that a proper analysis should lead to the conclusion that the delay in sentencing unreasonably exceeded the five-month post-conviction presumptive ceiling. On this basis, the appellant requests that this court substitute the conditional sentence imposed by the trial judge with a conditional discharge.

47I agree that the trial judge erred in her s. 11(b) analysis. Specifically, she erred in characterizing this as a complex case and in characterizing the delay due to technical difficulties as an exceptional circumstance attributable to the COVID-19 pandemic. These errors bring the post-conviction delay above the five-month presumptive ceiling. While I would reverse the trial judge’s s. 11(b) ruling, I disagree with the appellant that substituting a conditional discharge for the conditional sentence is the appropriate remedy. I would instead reduce the conditional sentence from 2 years less a day to a period of 20 months.

48Before turning to the analysis, it is helpful to first review the general principles that apply to post-conviction delay, followed by a review of the facts in this case and the trial judge’s s. 11(b) ruling.

(2) General principles that apply to post-conviction delay

49In R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, this court held that the presumptive ceiling for trial delay set by the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 does not include consideration of the time between conviction and sentencing. However, the court held that there is a separate presumptive ceiling of five months between the date of conviction and the date of sentencing. The court emphasized 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)” (emphasis added): at para. 87.

50The court further explained, at paras. 74 and 90-91, that, even in complex cases, the trial judge has a responsibility to raise the issue with counsel and set dates that take the presumptive ceiling into account.

51On a post-conviction s. 11(b) application, the court is to follow the same framework as established in Jordan, at para. 105, for calculating whether the delay was unreasonable. First, the court is to calculate the total time between the date of conviction and the date of sentencing. [2] Second, the court is to subtract delay solely attributable to the defence, which results in the net delay: Jordan, at paras. 60-61; Charley, at para. 89. A net delay that exceeds the five-month ceiling is presumptively unreasonable: Charley, at para. 87. The Crown can rebut this presumption by showing that the delay was due to exceptional circumstances, which can arise from discrete events or from the particular complexity of the proceeding, but not from chronic institutional delay: Jordan, at paras. 68-76; Charley, at paras. 98-104.

(3) Chronology of events between conviction and sentencing

52There were 435 days between the date when the trial judge convicted the appellant and the date when she sentenced him. There were several court appearances during this time:

• October 7, 2021: The trial judge gave her reasons for conviction, after which she scheduled an attendance for October 15, 2021.
• October 15, 2021: The parties attended before the trial judge to confirm a further attendance on December 13, 2021.
• December 13, 2021: Defence counsel requested an adjournment of the attendance to obtain a transcript of the trial decision. The matter was adjourned on consent to January 17, 2022 to be spoken to.
• January 17, 2022: The trial judge scheduled sentencing submissions for February 25, 2022.
• February 25, 2022: The parties attended before the trial judge to make sentencing submissions. Defence counsel requested a conditional discharge for his client. As part of his argument, he raised the collateral immigration consequences of the conviction, relying on an opinion letter, dated February 19, 2022, that stated that a conditional or absolute discharge would not lead to deportation. At the conclusion of his submissions, the trial judge said she wanted to reflect on the submissions to consider whether she had any questions, and also before hearing the Crown’s submissions. The hearing was scheduled to continue on April 5, 2022.
• April 5, 2022: The parties attended before another judge. The parties were advised that the trial judge was not available. The matter was put over to April 19, 2022.
• April 19, 2022: The parties attended before the trial judge and the Crown made submissions on sentencing. The Crown asked for 12 to 18 months of jail time, followed by probation of 18 to 24 months. The court set May 24, 2022 as the return date.
• May 24, 2022: The trial judge said that she was not ready to deliver her judgment but instead had some questions for the Crown and defence. Crown counsel who attended that day was not the Crown assigned to the case, so it was agreed that the trial judge would pose her questions on the record and counsel would provide written responses and reattend at a later date. The issues raised by the trial judge were: 1) whether s. 718.2(a)(iii.1) of the Criminal Code, R.S.C. 1985, c. C-46 applied; 2) whether a conditional sentence was available in this case; 3) given that the appellant was a first time offender, whether the principle of restraint was applicable and if so how would it apply; and 4) she requested a further opinion on the immigration consequences that would address the comments at para. 44 of Speyer J.’s decision in R. v. Singh, 2021 ONSC 3586, 79 M.V.R. (7th) 311 regarding s. 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The matter was then put over to July 12, 2022.
• July 12, 2022: The parties attended before another judge who advised that the trial judge was unavailable due to an emergency. The matter was adjourned to July 15, 2022 for the purpose of setting a date for further submissions and sentencing.
• July 15, 2022: The parties appeared before a justice of the peace, who re-scheduled the matter to September 16, 2022 for submissions and sentencing.
• September 16, 2022: The parties appeared before the trial judge. She said that she was not ready for sentencing and that she had one or two more questions. During the hearing, the trial judge referred to a letter dated September 8, 2022, which she said that, along with the February 19, 2022 letter, gave her a clear answer regarding the impact of a discharge on the appellant’s immigration status. However, she stated that the immigration consequences of a custodial or conditional sentence were not clear. Both parties made submissions on this point. The trial judge then asked that defence counsel obtain a further opinion regarding whether or not there was a “clear answer regarding the impact of a conviction, specifically here being real jail or intermittent sentence, a conditional sentence or a sentence that would impact the defendant’s immigration process which includes his appellate rights with regards to admissibility”. The focus of the concern was the availability of an appeal process on humanitarian grounds depending on the length and type of sentence. Defence counsel stated that he would try to make his expert available for the next hearing. The matter was rescheduled to September 20, 2022 to set a date for the continuation.
• September 20, 2022: The parties appeared before a justice of the peace, who scheduled the continuation for October 20, 2022.
• October 20, 2022: The parties attended before the trial judge for what was intended to be the delivery of her sentencing reasons. Just before the attendance, the appellant served and filed a s. 11(b) application based on the post-conviction delay. Due to the timing of this application, the appellant instructed defence counsel to waive further delay that would be incurred in order for the Crown to respond.
• December 16, 2022: The parties made submissions on the s. 11(b) application. Following submissions, the trial judge advised the parties that the application was dismissed with reasons to follow, and she then read her sentencing reasons. She sentenced the appellant to a conditional sentence of two years less a day, with a probation period of one year.

(4) Trial judge’s reasons for dismissing the s. 11(b) application

53The trial judge released her written reasons for dismissing the s. 11(b) application on March 9, 2023.

54In her reasons, the trial judge recognized this court’s decision in Charley, which, as referred to above, set a five-month presumptive ceiling between the date of conviction and sentencing.

55The trial judge stated that the total delay in this case was 12 months and 13 days. She then applied the “Jordan framework” to the period of post-conviction delay in this case.

56The trial judge first characterized the period between December 13, 2021 and February 25, 2022 as defence delay, because of defence counsel’s delay in ordering the transcript of the reasons for decision. This was a period of 74 days, which brought the net delay down to 304 days.

57The trial judge next found that some periods of delay were due to exceptional circumstances attributable to discrete events or the complexity of the case:

• April 5 to 19 and July 12 to September 16, 2022: this delay was due to the trial judge’s medical issue and was a discrete event.
• May 24 to July 12 and September 16 to October 20, 2022: this delay was due to the need for additional submissions regarding the immigration consequences of the proposed sentences; this was required because of the complexity of the case.
• February 25 to April 5, 2022: on February 25, the Crown was not able to complete submissions within the time allocated for the hearing. The trial judge stated that this was due to the court moving to fixed time hearings during the pandemic and some technical difficulties that delayed the hearing itself. The trial judge characterized this period of delay as “lack of court time” that was a “discrete event and a circumstance of the Covid-19 pandemic”.

58Based on this categorization of the periods of delay, the trial judge deducted 80 days due to “Judge’s unavailability”, 69 days due to “Questions from bench” and 39 days due to “Lack of Court time”, which brought the total delay below the 5-month presumptive ceiling.

(5) Analysis

59The appellant argues that the trial judge erred in calculating the amount of time she deducted because of her medical issues, and that she erred in finding that the complexity of the case and scheduling issues she attributed to the pandemic justified part of the delay. [3] I disagree that she made the first error, but I agree that she erred in finding that the complexity of the case and scheduling issues due to the pandemic constituted exceptional circumstances.

60The trial judge’s findings of fact on the s. 11(b) application are owed deference and are to be reviewed on a standard of palpable and overriding error. However, her characterization of the periods of delay and her ultimate decision as to whether there has been unreasonable delay are subject to review on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.

61Below, I address each period of delay with which the appellant takes issue.

(i) Delay due to the trial judge’s medical issues

62The appellant does not dispute that the delay due to the trial judge’s medical issues should be deducted as a discrete event. He takes issue with the length of the second period of delay the trial judge attributed to her medical issue, namely July 12 to September 16, 2022 and with the Crown’s inaction at that point in light of mounting delay. He argues that, while there is no information regarding the length of the medical issue, the Crown bears the burden of showing that the length of this delay was appropriate.

63I firmly reject this submission. The Crown is not in a position to ascertain the duration or nature of the trial judge’s medical issue. The appellant concedes that the medical issue falls within the discrete event category of exceptional circumstances. Given this context, this court should defer to the trial judge’s determination that this was a reasonable delay due to her own medical issue.

(ii) Delay due to the complexity of the case

64The appellant submits that the trial judge erred in deducting a 69-day period due to the complexity of the case. I agree for two reasons.

65First, while collateral immigration consequences add some complexity to sentencing, this is not the type of “particular complexity” contemplated by Jordan that would justify delay beyond the presumptive ceiling. In Jordan, at para. 77, the Court explained the types of circumstances that could be viewed as “particularly complex”:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [Emphasis added.]

66While this passage describes the types of complexities that may reasonably delay a trial rather than sentencing, the examples the Court provided nevertheless emphasize that only in exceptional circumstances will delay be justified due to the complexity of the case; in other words, the case must be particularly complex.

67In this case, the collateral immigration consequences added some complexity to the sentencing exercise but did not add particular complexity. The law regarding the role of collateral immigration consequences is well settled; while a trial judge can consider the collateral immigration consequences of a sentence, the sentence must nevertheless be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-16; R. v. R.L.S., 2020 ONCA 338, at paras. 10-12. The evidence required to ascertain the immigration consequences in any given case should be fairly straightforward, namely, as in this case, an opinion letter from a lawyer specializing in immigration law. If the defence is delayed in obtaining such a letter, this may be categorized as defence delay, but that is not what happened here. Unless the immigration circumstances in a particular case are truly exceptional, collateral immigration consequences on their own should not be viewed as exceptional.

68Second, in Charley, as reviewed above, this court directed trial judges to properly manage complex issues that may arise on sentencing to avoid delay beyond the presumptive ceiling. The court’s direction, at para. 91, was as follows:

When a trial judge has been alerted to complex issues that will be raised on sentence, the trial judge should set an appropriate schedule with counsel to address those issues in a timely and efficient manner. That schedule must keep the presumptive ceiling firmly in mind. If it appears to the trial judge that the proposed plans of counsel could run up against the presumptive ceiling, the trial judge should raise that issue with counsel at the scheduling meeting. Counsel should be asked to specifically address issues such as waiver and exceptional circumstances considered in the context of their proposed plans with respect to sentencing. Potential s. 11(b) problems should be confronted and addressed before they become s. 11(b) violations. [Emphasis added.]

69This was not done here. The appellant raised the issue of collateral immigration consequences relatively early in the sentencing process and submitted an opinion letter in support of this position, which was available for the hearing on February 25, 2022. This letter evidently caused the trial judge some concern and, rather than delivering the sentence, she asked for further information and submissions on the immigration issues twice, namely on May 24 and September 16, 2022. At no time did the Crown or the trial judge raise concerns over the delay this was causing. At no time did the Crown or the trial judge express any concern over the delay this was causing. If the trial judge had questions about the immigration issue, she should have raised them at the earliest opportunity and set a schedule to try to get answers to her concerns within the presumptive ceiling. From my review of the record, she did not do so.

70The trial judge erred in categorizing the collateral immigration consequences as an exceptional circumstance and in failing to case manage the sentencing proceedings in a way that minimized the delay caused by this issue. As a result, I would not subtract this period of delay from the net delay.

(iii) Delay due to the COVID-19 pandemic

71The appellant argues that the trial judge erred in deducting 39 days of delay for lack of court time due to the COVID-19 pandemic. I agree.

72The period of time at issue was from February 25 to April 5, 2022. Defence counsel was able to make his submissions on sentencing on February 25, but the Crown’s submissions were put off to April 5. In her decision on the s. 11(b) application, the trial judge ascribed what led to this delay to the COVID-19 pandemic, reasoning that the scheduling process and a few technical difficulties were caused by the pandemic:

At the time, the COVID-19 pandemic had a significant impact on scheduling resulting in a system-wide impact of unprecedented proportions, never seen in our lifetime.

The ‘fixed time’ scheduling approach was adopted to respond to the COVID-19 pandemic which forced court business to take place via video conferencing. The difficulties with adopting a virtual system for complex matters is evident from the record that day. On that day defence counsel disconnected from the call and the court unknowingly addressed him in his absence. The court waited for him to rejoin and readdressed him. I was unable to see [the appellant] and had to inquire about his location, time was taken to adjust the camera angle. The Crown did not have a copy of the pre-sentence report, so I emailed it to her rather than cause further delay in obtaining a copy through the trial coordinator. The digital Victim Impact Statement was unsigned and inquiries into its authenticity were made and satisfied. Defence counsel was inadvertently muted and had to be reminded to unmute himself. All parties were doing their best, working cooperatively to address the issues that presented themselves, but it took time which ultimately resulted in not being able to complete submissions on that day.

Ultimately, I find that the delay flowing from that adjournment was a discrete event and a circumstance of the Covid-19 pandemic.

73With all due respect to the trial judge, what occurred during submissions on February 25, 2022 cannot be described as an exceptional circumstance caused by the COVID-19 pandemic. It was not the pandemic that caused the delay, such as when courts shut down altogether in March 2020 and jury trials were not available until September 2021: see R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, leave to appeal refused, [2023] S.C.C.A. No. 477 (Flemmings), and [2023] S.C.C.A. No. 478 (Agpoon). There are many cases in which delay caused by the pandemic was justifiably an exceptional circumstance: see e.g., Donnelly, at paras. 23-27; R. v. Long, 2023 ONCA 679; and R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, leave to appeal refused, [2024] S.C.C.A. No. 41. But not in this case.

74What occurred here were small delays on a hearing day due to technical challenges and other missteps. Following the trial judge’s reasoning, all delays caused by minor technical issues since the pandemic could be categorized as an exceptional circumstance. By February 2022, the courts had generally adapted to the pandemic by introducing options for virtual hearings. Technology is not perfect and participants’ use of technology is not perfect, but minor technical malfunctions and attendant delays are not what the Supreme Court meant by stating that delay caused by exceptional circumstances could justify an extension of time. On the contrary, this is precisely the type of institutional drift or delay that participants in the justice system should guard against: Jordan, at paras. 81, 112-17; see also R. v. Kirkopoulos, 2024 ONCA 596, at paras. 22, 45-53.

75Once it became evident that submissions could not be completed on February 25, 2022, the parties and the trial judge should have been alert to the impending five-month presumptive ceiling and strived to make a plan to ensure sentencing was completed within that time period. Unfortunately, no one raised this concern and no steps were taken to guard against the mounting post-conviction delay.

76It was an error for the trial judge to treat this period of time as an exceptional circumstance. This period of delay should not have been deducted from the net delay.

(6) Revised calculation of delay

77Based on the analysis above, I would calculate the delay in this case as follows:

• Total delay in sentencing (October 7, 2021 to October 20, 2022): 378 days
• Defence delay due to transcripts (December 13, 2021 to February 25, 2022): 74 days
• Net delay: 304 days
• Exceptional circumstance due to trial judge’s unavailability (April 6 to 19, 2022, and July 12 to September 16, 2022): 79 days
• Remaining delay: 225 days

78The remaining delay is over seven months, which is well over the five-month presumptive delay. The post-conviction delay in this case was therefore unreasonable.

(7) Appropriate remedy

79The appellant argues that the appropriate remedy for the breach of his right to be sentenced within a reasonable time under s. 11(b) of the Charter is a conditional discharge. I disagree. I would instead reduce the conditional sentence by four months.

80In Charley, the court found that the post-conviction delay did not amount to a s. 11(b) Charter breach. The court therefore did not have to address the appropriate remedy. The court nevertheless stated, at para. 114, that it was “arguable that the remedy for post-verdict delay should not affect the conviction”. The court left the issue of the appropriate remedy to be determined in a future case.

81In R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, this court found that the post-conviction delay was unreasonable. In that case, the court held that the appropriate remedy should target the sentence given the violent nature of the offence: at para. 114. The court further held that, to target the sentence, the remedy must “be based on and align with sentencing principles”: at para. 116. Having regard to the sentencing principles, the court reasoned that delay in sentencing that rises to the level of a s. 11(b) Charter breach should lead to enhanced mitigation: at para. 119. On that basis, the court reduced a 30-month custodial sentence by 5 months.

82In this case, the remedy should also target the sentence. The offence of sexual assault is serious and the sentence should remain proportionate to the nature of the offence. While finding that there were several mitigating factors in this case, such as the appellant’s remorse and that this was his first offence, in her sentencing reasons, the trial judge nevertheless noted the seriousness of the offence and the devastating impact it has had on the complainant:

Sexual assault is a serious offence. In my respectful view, what occurred in the present case is less serious than the misconduct that was being sanctioned in some of the cases cited by the Crown as there was no penetration and no physical injuries. Nonetheless, the accused did not stop his sexual advances despite repeated requests that he stop. This constituted demeaning behaviour and contemptuous disregard for [the complainant]’s personal integrity.

The impact of the sexual assault on [the complainant] has been devastating. It is clear that the provisions of s. [718.2(a)(iii.1)] of the Criminal Code apply and this section requires that the sentencing address the significant impact on the psychological wellbeing of [the complainant].

83In the circumstances, giving effect to the appellant’s request for a conditional discharge would not be appropriate. Instead, I view the delay in sentencing as an enhanced mitigating factor and would reduce the sentence from a conditional sentence of 2 years less a day to a conditional sentence of 20 months.

84While I recognize that this will not relieve the appellant from the likely immigration consequences of his conviction, the trial judge had already considered the collateral immigration consequences in her sentencing reasons. Even having regard to the enhanced mitigation warranted by the s. 11(b) Charter breach, a conditional discharge would amount to a sentence that is manifestly unfit given the nature of the appellant's offence.

D. Disposition

85I would dismiss the conviction appeal. I would grant leave to appeal the sentence and allow the sentence appeal. I would reduce the sentence from a 2 year less a day conditional sentence to a 20-month conditional sentence. All other terms of the sentence are to remain in place.

Footnotes

1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

2Or, in this case (as conceded by the appellant), the date on which the s. 11(b) application is served.

3In his factum, the appellant submitted that the trial judge erred in calculating the overall period of delay from October 7, 2021 to October 20, 2022, taking the position that the end date should have been December 16, 2022, which was the day of sentencing. However, the appellant abandoned this argument at the hearing, correctly conceding that, in this case, the end date should be the date when he initiated the s. 11(b) application because the delay that followed was waived as necessary for the Crown to respond to the application: see R. v. Haniffa, 2021 ONCA 326, 155 O.R. (3d) 523, at paras. 35-36, aff’d 2022 SCC 46, 475 D.L.R. (4th) 496.