Court of Appeal for Ontario

Date: 2025-04-17
Docket: COA-23-CR-0829

Coram: B.W. Miller, B. Zarnett, L. Madsen

Between:
His Majesty the King (Respondent)
and
A.N. (Appellant)

Appearances:
Mark C. Halfyard, for the appellant
Philippe G. Cowle, for the respondent

Heard: 2025-04-08

On appeal from the convictions entered by Justice Michael B. J. Carnegie of the Ontario Court of Justice on May 10, 2023.

Reasons for Decision

Background

[1] The appellant was convicted of three counts of sexual interference and three counts of sexual assault following an eight-day trial in the Ontario Court of Justice. The sole ground of appeal relates to the dismissal of his Charter application in which he sought a stay of proceedings based on an alleged infringement of his right to be tried within a reasonable time under s. 11(b). Specifically, he challenges the characterization of a 60-day period that the application judge found to be an exceptional circumstance as a result of COVID-19. Without this finding, the total delay would have exceeded the applicable ceiling of 18 months.

[2] The application judge noted that the Charter application was brought at the eleventh hour, 35 days before the trial, and after the prescribed timeline. He found that the gross delay in the case was 656 days or 21.567 months, which exceeded the 18-month maximum delay period under R. v. Jordan, 2016 SCC 27, 1 S.C.R. 631, for cases tried in provincial court. In careful reasons, he considered each phase of the case to determine the causes of delay and calculated the net delay accordingly. No exception is taken to the characterization of a period of defence-caused delay (totaling 52 days), nor to the delay arising from mistaken estimates of trial time (totaling 28 days), which was also characterized as an exceptional circumstance.

[3] On the Charter application, the Crown argued that delays arising from the impact of COVID-19 on court scheduling should be considered an additional exceptional circumstance to the extent of a 60-day reduction, and submitted that the application judge should draw on his knowledge of the local circumstances in determining such delay. The defence took the position that a COVID-19 reduction was not appropriate.

[4] Drawing on his experience presiding during the pandemic and after, the application judge took judicial notice that COVID-19 caused delay respecting this case and other proceedings before the court. He stated: “I can with confidence say that this case was indirectly impacted by the COVID-19 pandemic.” Responding to the defence argument that delays in time-to-trial were not meaningfully greater than they were before COVID-19, he then turned to in-house statistics which he stated, “outline a different story entirely.” The application judge noted that pre-COVID-19 pandemic, time-to-trial in his court was approximately six months and that, as of March 2022, it was approximately eight months. Accordingly, he concluded that a 60-day exceptional circumstance allowance should be granted. Combined with the reductions not challenged on appeal, this brought the total net delay to 516 days, or 16.964 months, which was under the presumptive 18-month ceiling. He dismissed the appellant’s application.

[5] The appellant asserts that the application judge erred in his use of judicial notice and in referring to internal court statistics without notice to the parties. While he acknowledges that an application judge may rely on their knowledge of their local jurisdiction when assessing delay on a s. 11(b) application, he submits that the application judge’s reliance on internal statistics resulted in a lack of procedural fairness and was “a bridge too far”. He emphasizes that it is the Crown’s burden to show that an exceptional circumstance applies and argues that evidence was required to establish a causal connection between the delay in setting trial dates and the pandemic. He requests that we quash the conviction and enter a stay of proceedings.

Analysis

[6] We do not accept these arguments.

[7] As this court has stated on numerous occasions, while characterizations of periods of delay and the ultimate decision regarding whether there has been unreasonable delay are reviewed on a standard of correctness, deference is owed to the underlying findings of fact: R. v. Kirkopoulos, 2024 ONCA 596, para 42, citing R. v. Grant, 2022 ONCA 337, para 30; R. v. Pauls, 2020 ONCA 220, para 40, aff’d R. v. Yusuf, 2021 SCC 2.

[8] We do not accept the appellant’s submission that the application judge’s use of his knowledge of local practice, and in particular his citation of internal court statistics that informed that knowledge, was procedurally unfair. The Crown requested a deduction of 60 days and invited the application judge to rely on his local knowledge in so finding. The defence responded to that argument and urged the court to reject it; defence counsel cited his own anecdotal information that time to trial was the same as it had been before the pandemic. In deciding the issue the parties presented and making the factual determination that 60 days of the global delay was attributable to COVID-19 related backlog, the application judge acted squarely in accordance with the direction of the Supreme Court of Canada in Jordan and multiple decisions of this court. Those decisions instruct that courts hearing s. 11(b) applications are entitled to rely on their knowledge of the local culture in their jurisdiction and their experience to make findings about the impact of the pandemic on the issue of delay: see R. v. Vrbanic, 2025 ONCA 151, para 66; R. v. Agpoon, 2023 ONCA 449, paras 21-23, 26, leave to appeal refused, [2023] S.C.C.A. No. 477; R. v. Coates, 2023 ONCA 856, paras 6, 44-45, 54, 72, leave to appeal refused, [2024] S.C.C.A. No. 41; R. v. L.L., 2023 ONCA 52, para 21. We see no error in the quantification of delay based on local knowledge, including the application judge’s reference to internal statistics regarding time-to-trial.

[9] The appellant cites Kirkopoulos and R. v. Jones, 2025 ONCA 103, paras 55-59, to assert that the Crown was required to provide evidence establishing a causal connection between the delay and the exceptional circumstance, being COVID-19 in this case. We are not persuaded by this argument. In Kirkopoulos, this court deferred to the determination of the application judge regarding delay attributable to COVID-19, where that judge had relied on his knowledge of local circumstances. Similarly, in Jones, this court reaffirmed the importance of deferring to the expertise of trial judges of local circumstances and practices in considering alleged delays related to COVID-19, again deferring to the determination of the trial judge: see paras. 55-59. R. v. Laird, 2024 SKCA 61, also cited by the appellant for the same proposition, is not binding on this court. In any event, there are strong policy reasons for not adopting the approach articulated in Laird, whereby the Crown would be required to adduce evidence from court registry staff. Such an approach would likely result in significant demands on registry resources and further exacerbate the problems Jordan is meant to address.

[10] The application judge did not err in relying on his local knowledge of court operations, including reference to in-house statistics, in determining that a delay of 60 days was attributable to COVID-19.

Disposition

[11] The appeal is dismissed.

“B.W. Miller J.A.”
“B. Zarnett J.A.”
“L. Madsen J.A.”

Publication Ban

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