WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO DATE: 20200114 DOCKET: C64554, C64610 Doherty, van Rensburg and Hourigan JJ.A.

DOCKET: C64554 BETWEEN Her Majesty the Queen Respondent and R.D. Appellant

DOCKET: C64610 AND BETWEEN Her Majesty the Queen Appellant and R.D. Respondent

Counsel: Mark C. Halfyard and Lindsay Board, for R.D. Megan Petrie, for the Crown

Heard: December 20, 2019

On appeal by R.D. from the conviction entered on March 28, 2017 by Justice Brian P. O’Marra of the Superior Court of Justice, sitting with a jury, and from the order of Justice Anne M. Molloy of the Superior Court of Justice, dated March 16, 2017, with reasons reported at 2017 ONSC 1770.

On appeal by the Crown from the sentence entered on October 27, 2017 by Justice Brian P. O’Marra of the Superior Court of Justice, with reasons reported at 2017 ONSC 6375.

Reasons for Decision

[1] R.D. was convicted by a court comprised of judge and jury of sexual interference, sexual assault and uttering threats to cause bodily harm. He was acquitted of incest. The complainant was his younger sister, S.D. R.D. was sentenced to three years in prison (30 months for sexual interference; 30 months concurrent for sexual assault; and six months consecutive for uttering threats).

[2] The complainant alleged that over the course of eight years, commencing in 2001 until 2009, R.D. forced her to perform oral sex and digitally penetrated her, eventually having intercourse with her, and threatened to hurt her if she told anyone. According to the complainant, the abuse began when she was nine years old and R.D. was 18. She believed R.D. would hurt her, as there was a history of physical abuse.

[3] R.D. testified and denied the allegations. He admitted to having a poor relationship with the complainant and that he had pleaded guilty to assaulting her in 2004, ten years before his arrest on the current charges. He blamed the physical abuse on anger and impulse control issues. He also testified that he had learning disabilities, anxiety and depression.

[4] Z.B., the mother of the complainant and R.D., and J.D., the complainant’s ex-boyfriend, also testified as Crown witnesses at trial.

[5] R.D. appealed his conviction on the basis that the trial judge’s charge to the jury was deficient. He also appealed the dismissal of his application for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms. The Crown sought to appeal sentence.

[6] At the conclusion of oral argument, we dismissed the conviction appeal and the sentence appeal with reasons to follow. These are our reasons.

A. Alleged Deficiencies in the Jury Charge

[7] R.D. asserted that the charge was deficient in two material respects: (1) the trial judge neglected to review the defence evidence and the inconsistencies between the complainant’s evidence and that of other witnesses, and failed to relate these to the defence theory; and (2) the trial judge failed to instruct the jury adequately regarding the elements of each offence.

(1) The treatment of the evidence

[8] R.D. pointed to the failure of the charge to provide a separate summary of his evidence at trial. Instead, the trial judge summarized the complainant’s evidence, and he made reference to the evidence of the other Crown witnesses, while making only passing reference to R.D.’s testimony. R.D. submitted that the result was a charge that was unbalanced and unfair.

[9] We disagree.

[10] The standard required of a jury charge is adequacy, not perfection. The appellate court’s approach is functional, assessing the adequacy of the charge as a whole, in the context of the trial in which the instructions were given, and in light of its purpose: R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 32 to 41; R. v. Newton, 2017 ONCA 496, at para. 13. The charge must provide the jury with a sufficient understanding of the facts as they relate to the relevant issues from the trial: Jacquard, at para. 14. The trial judge has an obligation to review the substantial parts of the evidence and to relate the evidence to the issues to be decided. What is necessary are references to the evidence that are sufficient, in the context of the case and the entirety of the charge, to alert the jury to the specific parts of the evidence that are of significance to its decision on particular issues and to the positions of the parties on those issues. The role of the trial judge is to decant and to simplify: R. v. Huard, 2013 ONCA 650, at paras. 53 and 56.

[11] In this case, the trial judge’s approach to the evidence in his jury charge was focused on the issues at trial. He did not simply review the evidence of each witness in a narrative way. Rather, he told the jury that he was going to review “some parts of the evidence of [S.D.]”, that she was a critical witness in the trial, and that their assessment and consideration of her evidence would “go a long way towards deciding this case, bearing in mind [the need] to consider all of the evidence”. He then summarized parts of the complainant’s evidence, identifying where her account was contradicted by or inconsistent with the evidence of the other witnesses, including R.D. For example:

• After referring to S.D.’s evidence that she told Z.B. (her mother) about the first incident just after it happened and that Z.B. confronted R.D., the trial judge contrasted this account with Z.B.’s testimony denying that S.D. had reported this incident or any other sexual incident, and R.D.’s denial that this incident occurred.
• After referring to S.D.’s testimony that R.D. tried to sexually attack her when she was taking a shower and that there were no locks on the bathroom doors, the trial judge referred to the testimony of Z.B. and R.D. that there were locks on the bathroom doors.
• After referring to S.D.’s evidence that Z.B. had walked in on R.D. assaulting her “doggie style”, the trial judge referred to Z.B.’s evidence denying she had ever seen such an incident. The trial judge followed this with a reference to Z.B.’s account of seeing the two under a blanket, which he characterized as “somewhat equivocal”.

[12] Contrary to R.D.’s submissions, in these and other references to the evidence, the trial judge pointed out the key discrepancies between the complainant’s account and those of the other witnesses that might have served to undermine her credibility. In the context of this trial, where the complainant’s credibility was a significant issue, this approach was likely more effective than simply providing a witness-by-witness summary of the evidence that the jury heard.

[13] As for R.D.’s argument that the trial judge’s approach failed to relate the evidence to his defence, we disagree. The main defence, other than R.D.’s denial of any instance of sexual contact with his sister, was that the complainant had fabricated the allegations because she felt angry about the admitted physical assaults she had suffered over the years and she wanted to have him out of the house where she would be living with her mother and young daughter. The jury was reminded repeatedly that the incidents of sexual contact described by the complainant were denied by R.D. His own evidence did not advance the fabrication defence. In fact, there are parts of his testimony that, when recounted as a narrative, may not have assisted R.D. in this case: his recollection that on one occasion he was lying on his bed under a blanket with the complainant, and that he said “don’t have a dirty mind, mom” when confronted by his mother, and his admission that the complainant suddenly began keeping her young daughter from him.

[14] Ultimately, the case largely turned on whether the jury believed the complainant. In his review of the evidence, the trial judge pointed out the main areas where her evidence was contradicted by or inconsistent with other evidence at trial. And, in reviewing the evidence, the trial judge repeated on several occasions the need for the jury to be satisfied beyond a reasonable doubt that the sexual acts had occurred.

[15] Finally, we note that there was no objection to this part of the charge. While not determinative, the failure to object to the trial judge’s review of the evidence and how it related to the issues “may be indicative of the seriousness of what is later said to be error and a factor in appellate review”: R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 155.

(2) The review of the elements of the offences

[16] At the outset of the trial, the trial judge provided a brief explanation of the charges with reference to what was alleged in the indictment. He told the jury that the complainant was the sister of the accused, and that sexual assault is the intentional touching of another person without their consent in circumstances of a sexual nature. He explained that the complainant could not consent to count 1, the charge of sexual interference. He explained that count 2 alleged sexual intercourse and that this is an offence often referred to as incest, and that again the Crown did not have to prove that the complainant did not consent. With respect to count 3, the charge of sexual assault, the trial judge stated that he would reserve his instructions about the law on that count until the end, and that he would do the same with respect to count 4, the charge of uttering a threat.

[17] In his jury charge, the trial judge returned to the elements of the offences. He stated as follows with respect to the first three counts:

I am now going to discuss with you the elements of the offences alleged in this case. Counts 1 to 3 on the indictment, and you will have a copy of that with you in your jury room, allege sexual offences that occurred within stated time periods. At the outset of the trial, and before evidence was presented I referred to some of the different elements of each of those offences that the Crown must prove beyond a reasonable doubt for there to be convictions on any of those charges. I referred to Count 1, which is sometimes referred to as sexual interference with a person less than 14 years old; and Count 2, which is incest, as not requiring proof that the complainant did not consent. Consent is not a factor if the person is under a certain age, or if it is alleged you had sexual intercourse with a certain, a family relationship. Now that the evidence is complete, my instructions to you as to what the essential elements to be proven by the Crown are, has become focused and clear in this case. [S.D.] has testified that she was the victim of ongoing sexual abuse by her brother that escalated from touching her private parts, digital penetration, forced fellatio, up to and including intercourse. She did not consent to any of those acts and was forced to submit by threats of force. [R.D.] has denied that any of the alleged sexual acts took place. You must return separate verdicts on each count in the indictment. If you are satisfied, in this case, if you are satisfied, based on all of the evidence and my instructions on the law, that the sexual acts as described by [S.D.], were committed by [R.D.], then Counts 1 to 3 are proven. As I will make clear to you, your decision must not be based on whose evidence you prefer over the other. There is no onus on [R.D.] to prove he is innocent. The Crown must satisfy you beyond a reasonable doubt that he is guilty of any of Counts 1, 2 or 3.

[18] During their deliberations, the jury asked the following question: “Charge 3 – Question: (1) for the third charge, please clarify the term sexual assault; (2) Please clarify if consent is a factor; and (3) Does the age of the alleged victim matter?”

[19] The trial judge invited submissions on the answer to the jury’s question. Defence counsel indicated that, in the context of the evidence, the only question for the jury was whether or not the alleged conduct occurred, that there was no evidence in respect of any kind of consent, and that if they believed the complainant, the offence would be made out. The trial judge answered the question in a manner consistent with these submissions. He stated:

Sexual assault is defined in the Criminal Code as the intentional touching of someone else without their consent in circumstances of a sexual nature. Now in some cases of alleged sexual assaults, consent is the issue. You will have other cases, not this case, where the defence is…there was sexual contact up to and including intercourse, and the defence position in those other cases is, but it was with consent. And the Crown, in that case, must prove beyond a reasonable doubt that it was not consensual. Okay? Now in this case, there is no suggestion by anyone, Crown or defence or [R.D.]…that any of the alleged sexual events were consensual…the only evidence on the issue of consent is from the complainant, who indicated that none of the sexual acts were consensual. Okay? But the fundamental issue for you to decide is this, did the sexual acts as described by the complainant occur, because if you are not satisfied that there were these sexual acts as described by the complainant, then [R.D.] is entitled to be acquitted. If you are not satisfied beyond a reasonable doubt, this is the fundamental issue to deal with, beyond a reasonable doubt that the sexual acts as described by the complainant did occur, if there were, if you are satisfied that there were these sexual acts, the only evidence on consent is that there was no consent...

[20] On appeal, R.D. argued that the trial judge erred by failing to set out the elements of the offences in his charge to the jury, with the result that the jury reached potentially inconsistent verdicts. The focus of this submission was on the sexual offences. We disagree.

[21] Once again, this court’s review of the adequacy of the charge is functional. A proper jury instruction is one that arms the jurors with the information they need to reach a fair and proper verdict in the circumstances of the particular case. The trial judge’s explanation of the law must be tailored to those specific circumstances: R. v. Haughton (1993), 11 O.R. (3d) 621 (ONCA), at p. 625, affirmed , [1994] 3 S.C.R. 516; R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 63-64.

[22] In this case, when the instructions are looked at functionally, and considered together with the response to the jury question, which forms part of the charge, the trial judge provided instructions on the elements of each offence that were sufficient for the jury to perform its task. The kinds of touching that the complainant described were undoubtedly assaults of a sexual nature. Consent was not an issue. The trial judge and counsel were ad idem that the real issue in this trial was whether the jury was satisfied beyond a reasonable doubt that the sexual acts as described by the complainant had taken place. This was underscored by the trial judge in the passage set out above. And, not only was there no objection to the trial judge’s description of the elements of the offences charged, but defence counsel, in his submissions on the recharge following the jury’s question, specifically endorsed the trial judge’s approach.

[23] Finally, we do not accept that the way the trial judge instructed the jury on the elements of the offences created the potential for inconsistent verdicts. The jury had the indictment which provided particulars of what was alleged. In respect of the charge of incest, it was clear that the charge was of having sexual intercourse. It is telling that the jury acquitted R.D. on the charge of incest, while finding him guilty of sexual interference and sexual assault. These verdicts, which are not inconsistent, suggest that the jury understood the elements of the offences and were not satisfied beyond a reasonable doubt that sexual intercourse, which was an essential element of the incest charge, had taken place.

B. The 11(b) Ruling

[24] R.D. argued that the application judge erred in dismissing his s. 11(b) application. He was arrested on September 23, 2014, and his trial in the Superior Court began on March 20, 2017 and ended on March 28, 2017.

[25] The following timeline sets out the relevant court attendances and events:

• Sep. 23, 2014: Appellant is arrested.
• Sep. 26, 2014: Appellant is released on bail and speaks to Legal Aid, which advises him they need Crown disclosure and screening form to process his application.
• Oct. 30, 2014: Matter is traversed to 1000 Finch for November 27. No disclosure made. The Crown informs the Court that disclosure would be prepared at 1000 Finch.
• Nov. 27, 2014: Some disclosure is provided. Appellant advises that he had retained counsel Mr. Zoppi. Matter is remanded to January 8 at request of both Crown and defence.
• Jan. 8, 2015: Crown advises that further disclosure has been provided to R.D., and that the DVD containing the complainant interview was available, but would only be disclosed to R.D.’s lawyer given the nature of the charges. The Court is advised that R.D. wanted to retain Mr. Zoppi but had not made an application to Legal Aid as he had not received a charge screening form from the Crown. Matter is remanded to January 29 to allow R.D. to perfect his Legal Aid application. With the required materials, R.D. applies for and receives Legal Aid that day.
• Jan. 29, 2015: Articling student from R.D.’s lawyer’s office appears and DVD is provided. The matter is remanded to February 12, 2015.
• Feb. 12, 2015: Defence requests adjournment to March 5, 2015 to allow counsel to review DVD and to schedule a Crown pre-trial (CPT) with the assigned Crown.
• Mar. 5, 2015: Court is advised that a CPT has been scheduled for March 9. Matter is remanded to March 12 to schedule preliminary hearing.
• Mar. 12, 2015: Court is informed that CPT conducted and judicial pretrial (JPT) is scheduled for April 2
• Apr. 2, 2015: JPT is conducted and November 23 and 24, 2015 are set for preliminary inquiry.
• Nov. 24, 2015: Appellant is committed to stand trial in Superior Court.
• Dec. 17, 2015: Appellant appears in Superior Court. Matter is adjourned to February 2, 2016 for a JPT.
• Feb. 2, 2016: JPT is conducted. October 25, 2016 set for a seven-day trial with a jury. Defence indicates intention to bring third-party records application.
• Sept. 2016: Defence delivers third party records application.
• Oct. 24, 2016: Trial scheduled to begin. No judge available. Trial adjourned.
• Oct. 26, 2016: Third party records application heard. Matter is remanded to November 28.
• Nov. 28, 2016: Trial scheduled to begin. No judge available. Trial adjourned.
• Nov. 30, 2016: New trial date of March 20, 2017 set.
• Mar. 16, 2017: Section 11(b) application argued and dismissed.
• Mar. 20, 2017: Trial begins.
• Mar. 28, 2017: Trial ends.

[26] The application judge determined that the total delay was 30 months and six days, just over the presumptive ceiling prescribed by Jordan (R. v. Jordan, [2016] 1 S.C.R. 631). There is no dispute about the calculation of the overall delay. R.D. asserted that the application judge erred in attributing part of the delay to the defence, which brought the net delay under the threshold. In the alternative, R.D. submitted that the application judge erred in her conclusion that the defence had not established unreasonable delay.

[27] The application judge attributed two periods of delay to the defence.

[28] The first was the delay caused by R.D.’s failure to complete his Legal Aid application in a timely way. R.D. had known since his first appearance on September 26, 2014 that he needed a Crown screening form to complete his Legal Aid application. He did not raise the matter in his next two appearances. On both occasions, he was assisted by duty counsel and had already consulted with the defence counsel that he wished to retain. When R.D. raised the issue on January 8, 2015, the form was immediately provided by the Crown and R.D. was approved the same day for Legal Aid. On that day the matter was put over to January 29, 2015.

[29] The DVD recording of the complainant’s statement was available by January 8, 2015. The application judge attributed to R.D. part of the delay from January 8 to 29, 2015, when an articling student from the office of R.D.’s lawyer attended court, and on that day received the DVD.

[30] The second period of delay attributed to the defence was part of the period from February 12 to March 5, 2015. The application judge acknowledged that it was reasonable on January 29 to adjourn to February 12, a date agreed to by defence counsel, so that defence counsel could prepare before setting a Crown pre-trial date. However, on February 12, defence counsel stated that “we have just recently received the complainant’s video statement” and that “we’re just going through it”, and requested a further adjournment to March 5, 2015, before setting the pre-trial date. The application judge noted that the total length of the DVD was under two hours and that the defence had it for two weeks before asking for another three weeks to review it and to arrange a pre-trial.

[31] The application judge did not precisely define the amount of delay attributable to the defence, but she noted that the delay “considerably exceeded six days and therefore brought the delay beneath the 30-month ceiling”.

[32] R.D. argued that the application judge erred in attributing any part of these two delays to the defence. With respect to the first period, he claimed that Legal Aid required a Crown screening form and disclosure to process the defence application, and that because no disclosure except the information and synopsis was actually ready until January 8, 2015, an adjournment would have resulted in any event. As for the second period, R.D. says that a period of six weeks was not unreasonable for counsel to review the complainant’s statement, to consider possible defences, and to hold a Crown pre-trial. In other words, the purpose of the adjournment was not simply to review the complainant’s statement.

[33] We disagree. The characterization of the periods of delay and the ultimate decision on an application for a stay are reviewable on a standard of correctness whereas findings of fact are entitled to deference and reviewable on a standard of palpable and overriding error: R. v. Florence, 2014 ONCA 443, 312 C.C.C. (3d) 165, at para. 39.

[34] The application judge did not attribute all of the delay in the two periods in question to the defence. She was aware of the fact that on each of the earlier dates no, or only minimal, Crown disclosure had been provided. The application judge did not attribute any of the delay between R.D.’s first appearance and January 8 to defence delay. However, she reasonably concluded that some of the delay between January 8 and 29 was attributable to the defence because R.D. did not advise that he needed a Crown screening form until January 8, which delayed his Legal Aid appointment of counsel.

[35] By January 8, the Crown had provided more disclosure (in the form of police notes, etc.), and advised that a DVD of the complainant’s statement was available but would only be provided to counsel. Had R.D. retained a lawyer before the January 8 court attendance, counsel could have received disclosure of the DVD at that time. The application judge reasonably concluded that, accordingly, at least some part of the delay when the matter was adjourned for a further three weeks was attributable to the defence delay. There is no evidentiary basis for the assertion on appeal that, even if R.D. had asked for the Crown screening form on an earlier occasion, he would not have been able to proceed with his Legal Aid application in any event because full disclosure had not been made.

[36] As for the second period of defence delay, on January 29 defence counsel had agreed to an adjournment to February 12 for the purpose of obtaining and reviewing the DVD and having a Crown pre-trial. Although the DVD was obtained on January 29, on February 12 defence counsel asked for an adjournment to March 5, and it was only on that date that a Crown pre-trial date was set and the matter remanded to March 12. The application judge specifically recognized that a reasonable period of time for defence counsel to prepare is not properly described as delay by the defence. However, after referring to the fact that the DVD was only two hours long and that the defence had received it more than two weeks earlier, she concluded that at least some portion of the time between February 12 and March 5 (when the defence was ready to set a Crown pre-trial date) was attributable to defence delay and must be subtracted from the total overall delay. We see no basis to interfere.

[37] Accordingly, we see no error in the application judge’s allocation of at least six days to defence delay. As a result, there was no presumption of unreasonable delay and no onus on the Crown to rebut the presumption.

[38] We also do not accept that the application judge erred in rejecting R.D.’s argument that the delay, in any event, was unreasonable. Where the net delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish both that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it reasonably should have: Jordan, at para. 82. For cases that were in the system when Jordan was decided, these factors must be applied contextually and flexibly, sensitive to the parties’ reliance on the previous state of the law: Jordan, at para. 99; R. v. Coulter, 2016 ONCA 704, 340 C.C.C. (3d) 429, at paras. 58, 87-89.

[39] The application judge concluded that R.D. had not met either branch of the test. She was not satisfied that the defence had shown initiative in moving the matter ahead, and the delay in getting the case to trial was not a marked departure from the reasonable time requirements of the case. She considered “a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings”: Jordan, at para. 87. It was in this context that she referred to the delays caused by the circumstances of the Superior Court in Toronto in the fall of 2016 as “local circumstances”.

[40] R.D. asserted that the application judge made two errors: first, because this was a transitional case, she erred in unduly emphasizing defence initiative. Although the first prong of the test requires the defence to show a sustained effort to expedite the proceedings, “the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding Jordan.” Second, R.D. argued that the application judge wrongly relied on the lack of available judges to hear his case as a “local consideration” that justified the delay. He submitted that “local considerations” cannot include the government’s failure to appoint sufficient judges, and that in this case, the reason for the delay was that his trial was adjourned twice because it could not be accommodated by the court, which added five months to the total period of delay and resulted in 15 months’ total time post-committal in the Superior Court.

[41] We would not interfere with the application judge’s conclusion that R.D. did not establish unreasonable delay. Even taking into consideration that this was a transitional case, although defence counsel indicated his intention to bring a third-party records application at the judicial pre-trial on February 2, 2016, the application was only served in September 2016, two months after Jordan was released, and leaving insufficient time to have the application determined before the first scheduled trial date. The application judge reasonably concluded that the failure to bring the application well in advance so as not to jeopardize the trial date was not consistent with a “sustained effort to expedite the proceedings” as required under Jordan.

[42] Moreover, there is no error in the application judge’s approach to and assessment of whether the time in this case markedly exceeded the reasonable time requirements of the case. She reasonably considered the circumstances that existed in the Superior Court in Toronto immediately post-Jordan, including the “dramatic decline in the number of cases that resolved prior to their trial dates”. We agree with her assessment that this was not a “clear case” of unreasonable delay.

[43] Accordingly, we do not give effect to this ground of appeal.

C. Sentence Appeal

[44] The Crown sought to appeal the sentence, asserting that the trial judge did not give effect to an aggravating factor: that R.D. was in a position of trust in relation to the complainant. The Crown asked this court to find that the sentence was in error and to impose a higher sentence of six years in custody.

[45] The Criminal Code provides for a number of statutory aggravating circumstances, including that the offender, in committing the offence, abused a position of trust or authority in relation to the victim: s. 718.2(a)(iii). The onus is on the Crown to establish the aggravating factor beyond a reasonable doubt.

[46] Here, the trial judge concluded that, while R.D. as the older brother was in a position to exert physical and sexual domination of the complainant in the home and despite the age difference, this did not amount to a position of trust in the particular circumstances: at para. 28.

[47] On appeal, the Crown asserted that the evidence fully supported the aggravating factor of R.D.’s breach of trust in committing the offences on his much younger sister in the family home, and that the trial judge erred in law in concluding otherwise.

[48] We do not agree that the trial judge’s decision reveals error. While R.D. was many years older than S.D., and much bigger than and physically stronger than S.D., he also had an intellectual disability. The evidence was that, until she was 12, S.D. and her younger brother went to a babysitter’s home while their mother was at work and that, after that, S.D. took care of her younger brother. There was no evidence of a caregiving relationship between R.D. and his younger siblings. The trial judge was not prepared to accept, in the circumstances of this case, that a position of trust followed from the age difference and R.D. and the complainant being alone in the home. In our view, the conclusion that, in the particular circumstances of this case, the aggravating factor had not been made out was available to the trial judge on the evidence.

[49] For these reasons, although we granted leave to appeal sentence, we dismissed the sentence appeal.

“Doherty J.A.” “K. van Rensburg J.A.” “C.W. Hourigan J.A.”