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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2018-12-06

Docket: C64315

Panel: Watt, Pardu and Roberts JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

J.C.-P.

Appellant

Counsel

For the Appellant: Frank Addario and Samara Secter

For the Respondent: Frank Au and Molly Flanagan

Hearing and Appeal Information

Heard: June 26 and 27, 2018

On appeal from: The convictions entered by Justice Faye E. McWatt of the Superior Court of Justice on March 3, 2017, with reasons reported at 2017 ONSC 207, and from the sentence imposed on September 22, 2017, with reasons reported at 2017 ONSC 5518.

And on appeal from: The ruling of Justice Faye E. McWatt of the Superior Court of Justice dated August 17, 2017, with reasons reported at 2017 ONSC 4246, 390 C.R.R. (2d) 66.

And on appeal from: The judgment of Justice Robert F. Goldstein of the Superior Court of Justice dated November 8, 2016, with reasons reported at 2016 ONSC 6923, 371 C.R.R. (2d) 86.

Decision

By the Court:

A. Overview

[1] The appellant appeals from his convictions and seeks leave to appeal from his 20-month global custodial sentence for luring, sexual exploitation, and making, possessing and accessing child pornography in relation to two complainants, A.P. and M.M, contrary to ss. 172.1(2)(a), 153(1.1)(a), 163.1(2)(a), 163.1(4)(a), and 163.1(4.1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant was acquitted of charges involving a third complainant, M.B.

[2] These convictions depended principally on the evidence of the appellant's sexually explicit electronic text interactions with basketball players, one of whom he directly coached, when the players were 16 and 17 years old during the period from January 2012 to May 2013. In these text exchanges, under the pretext of a "challenge or bet", the appellant invited the complainants and other teenaged players to send him photographs of their penises and videos of themselves engaged in various sexual acts. A.P. complied with the appellant's requests and received money for doing so from the appellant; M.M. refused; M.B. sent photographs but possibly when he was 18 years old. The appellant was also convicted of a brief touching offence in relation to A.P.

[3] On October 13, 2016, almost 41 months after the charges were laid, the appellant brought an application to stay the proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms, claiming his rights under s. 11(b) of the Charter had been violated because of the unreasonable delay in bringing the matter to trial. The trial judge considered, as submitted by the defence, that the delay to the anticipated end of trial totalled about 43 months.

[4] Following the analytical framework set out by the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the application judge deducted 6 months and 20 days of delay that he attributed to the defence, resulting in a net delay of just over 36 months (36 months and 10 days). He found that there were two discrete exceptional circumstances: an unexpected adjournment of a judicial pre-trial conference; and delay caused by confusion over a defence pre-trial application. The application judge deducted approximately three and one half months as a result, leaving a remaining delay of just under 33 months (32 months and 23 days). As the charges were laid well before the release of Jordan on July 8, 2016, the application judge concluded that transitional exceptional circumstances applied and that society's interest in the trial of the serious charges on their merits outweighed "the minimal prejudice" that the appellant experienced. As a result, he found the delay was justified and dismissed the application on November 8, 2016.

[5] The trial judge convicted the appellant on March 3, 2017. The trial judge acquitted the appellant of the charges against the third complainant, M.B., because the complainant might have been 18 years old when the alleged offences involving him occurred. The appellant was sentenced on September 22, 2017 to 20 months in custody, concurrent on all counts.

[6] The appellant advances several grounds of appeal. As we are satisfied that the appeal must be allowed because the application judge erred in dismissing the appellant's s. 11(b) Charter application, it is unnecessary to consider the other grounds of appeal.

B. Issues and Analytical Framework

[7] The appellant submits that his s. 11(b) Charter right to be tried within a reasonable time was infringed because the delay in this case was unreasonable and the application judge erred in dismissing his application to stay the proceedings against him.

[8] The applicable framework that the application judge set out in his reasons is not controversial. He followed the governing principles for determining whether the delay in this case infringed the appellant's s. 11(b) Charter rights as articulated by the majority of the Supreme Court in Jordan, at paras. 46-117, and as described by this court in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41. In his reasons, he correctly detailed the analytical steps that he was required to undertake:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, para. 47).

2. Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, para. 66).

3. Compare the Net Delay to the presumptive ceiling (Jordan, para. 66).

4. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

5. Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

6. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

7. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

9. The charges in the case were laid well before Jordan. If net delay is beyond the Jordan ceiling, then a court must determine whether transitional exceptional circumstances apply.

[9] While the appellant argues that the court should consider the delay extending to his sentencing date for the purposes of this appeal, it is not necessary to do so. It is not contested that for the purposes of the application, the application judge appropriately measured delay from the date of the charge to the anticipated end of the trial: Jordan, at para. 47. At the time of the hearing of the application, the application judge considered that this delay amounted to about 43 months. Even after deducting the delay attributed to the defence by the application judge, there is no issue that the net delay was presumptively unreasonable because it exceeded the 30-month ceiling for cases tried in the Superior Court of Justice: Jordan, at para. 46. As we shall explain, even if delay was measured only to the anticipated end of trial, we conclude that the delay was unjustified and infringed the appellant's s. 11(b) Charter rights.

[10] The appellant contends that the application judge erred in his application of the governing Jordan principles. The main submissions pursued on appeal can be summarized as follows:

i. The application judge erred in finding that the adjournment of the exit judicial pre-trial conference was a discrete exceptional event and in reducing the net delay by 1 month and 17 days.

ii. The application judge erred in his transitional exceptional circumstance analysis in the following ways:

a. he assessed five months of the delay caused by lengthy Crown disclosure as a neutral intake period rather than attributing two and one half months to Crown delay;

b. he treated the unavailability of the presiding judge for the scheduled exit judicial pre-trial as neutral when he should have characterized the delay caused by the resulting adjournment as institutional delay; and

c. he only assessed the question of actual prejudice caused by the delay to the appellant and failed to consider inferred prejudice.

[11] We examine each of these arguments in turn. While the application judge made several detailed findings about the delay in this case, it suffices to focus only on the application judge's findings in relation to the issues pursued on appeal.

C. Analysis

i. Did the application judge err in finding that the adjournment of the exit judicial pre-trial conference was a discrete exceptional event and in reducing the net delay by 1 month and 17 days?

[12] As earlier noted, the application judge found that the net delay of 36 months and 10 days exceeded the 30-month presumptive ceiling for cases tried in the Superior Court of Justice. The application judge determined the Crown had demonstrated that the adjournment of the exit judicial pre-trial from September 2 to October 19, 2015 was a discrete exceptional event and reduced the delay by the resulting 1 month and 17 days.

[13] On appeal, the Crown submits that the application judge properly characterized this period as a discrete event because the adjournment was unforeseeable, and it could not be reasonably remedied once it arose. The Crown was under the impression that the exit judicial pre-trial would proceed on September 2, 2015, given that the preliminary inquiry judge (the "pre-trial judge") had twice indicated he was available on that day.

[14] We agree that the application judge erred in his conclusion.

[15] The delay in issue was not caused by the Crown or defence but by the system's inability to accommodate the parties when they were ready to proceed. The parties scheduled September 2, 2015 for the exit judicial pre-trial conference before the pre-trial judge. When the parties attended for the exit judicial pre-trial on September 2, they were informed that the pre-trial judge was not available because he was on vacation. The exit judicial pre-trial was adjourned to the next date when all parties were available – October 19, 2015.

[16] The application judge erred in holding that the reason for the pre-trial judge's unavailability was irrelevant. Because the delay exceeded the presumptive ceiling, the burden was on the Crown to prove that the circumstances of the court's unavailability were reasonably unforeseen or unavoidable and could not have reasonably been remedied: Jordan, at paras. 105, 112. There was no explanation for the pre-trial judge's unexpected absence other than that he was on vacation. Further, there was no evidence that this was the kind of exceptional circumstance that should justifiably serve to excuse the delay, as suggested by way of illustration in Jordan, at para. 72: for example, if a medical or family emergency had befallen the judge. Every actor has a responsibility to ensure that proceedings are carried out in a manner consistent with the Charter: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 1. As Jordan instructs at para. 116, this includes the court:

Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493:

The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid.... It is in the interest of all constituencies – those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal – to make the most of the limited resources at our disposal. [para. 32]. [Emphasis added.]

[17] The application judge therefore erred in deducting an additional 1 month and 17 days from the net delay to arrive at a remaining delay of just under 33 months (32 months, 23 days). The only discrete exceptional event was the two-month delay caused by the confusion over a defence pre-trial application. As such, in accordance with the application judge's net delay calculation, this leaves a remaining delay of about 34 months and 10 days.

[18] As the application judge noted in his reasons, given that the remaining delay exceeded the 30-month presumptive ceiling under the Jordan framework, he was required to go on to consider whether the case was particularly complex such that the time the case had taken was justified and the delay was reasonable: Jordan, at para. 80. In its submissions on the application, the Crown conceded that it was not a particularly complex case. While the application judge's reasons do not explicitly address the complexity of the case, it is implicit that he accepted that the case was not complex because he concluded that the remaining delay was unreasonable.

ii. Did the application judge err in his transitional exceptional circumstance analysis?

[19] As the application judge correctly noted, the new framework in Jordan applies to cases already in the system: Jordan, at para. 95. However, in some cases, transitional exceptional circumstances may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan: Jordan, at para. 96; Cody, at para. 67. This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity: Cody, at para. 67.

[20] In determining whether there are applicable transitional exceptional circumstances, the Crown must satisfy the court that the time taken in the case is justified based on the parties' reasonable reliance on the law as it previously existed under R. v. Morin, [1992] 1 S.C.R. 771: Jordan, at para. 96; Cody, at para. 72. This requires the court to undertake a contextual assessment of the delay, sensitive to the manner in which the previous framework was applied, and to the fact that the parties' behaviour cannot be judged strictly, against a standard of which the parties' had no notice: Jordan, at para. 96. Consideration of the seriousness of the offences, prejudice to the accused, and the parties' general level of diligence may inform whether the parties reasonably relied on the previous state of the law: Jordan, at para. 96; Cody, at paras. 69-70; and R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 119.

[21] The relevant considerations that inform the transitional exceptional circumstance analysis are well-recognized. They 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 any institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 321, leave to appeal refused, [2016] S.C.C.A. No. 513; Gopie, at para. 178; and R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741 ("Williamson (SCC)"), aff'g 2014 ONCA 598, 314 C.C.C. (3d) 156 ("Williamson (ONCA)").

[22] While transitional exceptional circumstances may apply to justify unreasonable delay, the s. 11(b) rights of accused persons cannot be held in abeyance while the system adjusts and responds to the Jordan framework: Jordan, at paras. 96, 98. This reality requires the court to apply the transitional exceptional circumstance analysis contextually, and to appreciate that this analysis occurs within the Jordan structure and not in an analytical vacuum. As the majority explains at para. 98 of Jordan: "… [T]he delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual."

[23] In this case, almost the entire proceedings leading up to the appellant's s. 11(b) Charter application pre-dated the release of Jordan. The Crown therefore had to show that the 34 months and 10 days of remaining delay was justified in light of its reliance on the previous state of the law under Morin.

[24] The appellant submits that the Crown failed to meet its onus and that the application judge erred in his analysis of the factors that were relevant under the previous Morin framework, including the former guidelines about institutional delay of 8 to 10 months for matters in the Ontario Court of Justice and a further 6 to 8 months after committal for trial in the Superior Court of Justice: Jordan, at paras. 30, 96; Morin, at p. 799. In particular, the appellant takes issue with the application judge's treatment of delay occasioned by the lengthy period of Crown disclosure, the adjournment of the exit judicial pre-trial conference, and his failure to consider inferred prejudice to the appellant caused by the delay.

a) Crown disclosure delay

[25] The appellant submits that the application judge erred in finding that the lengthy period of the Crown disclosure in this case amounted to a transitional exceptional circumstance.

[26] The application judge explained his reasoning as follows:

In my view, given the voluminous disclosure, and taking a somewhat arbitrary view of it, 5 months ought to be considered as intake or neutral. As I understand it the police seized numerous electronic devices that had to be searched, the material downloaded and analyzed (including thousands of text messages and photographs), and then organized for disclosure purposes. Given the nature of the case, the police did not have the luxury of doing that work pre-arrest. Some allowance must be made for that….

[27] We agree that the application judge erred in inflating the neutral intake period to five months.

[28] There is no fixed or usual period of intake: Morin, at pp. 792-93; R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 16. Rather, intake periods can vary in length depending on various factors which may include the complexity of the case: R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at para. 19; and Morin, at p. 792; R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 32, leave to appeal refused, [2011] S.C.C.A. No. 195. While courts have recognized lengthier intake periods in child pornography cases, given that they are frequently complex and that police investigations often occur post-charge (see generally R. v. St. Amand, 2017 ONCA 913, 358 C.C.C. (3d) 226, at paras. 87-88 and R. v. Stilwell, 2014 ONCA 563, 313 C.C.C. (3d) 257, at para. 39), courts should nevertheless look to the record in each case to assess what is reasonably attributable as neutral intake time. For example: see Steele, at paras. 15-17.

[29] In this case, the application judge erred by simply accepting that child pornography cases are necessarily complex and therefore require a long intake period. As a general proposition, not all cases involving voluminous disclosure are complex. The question to be determined in each case is "whether the case is sufficiently complex such that the delay is justified": Jordan, at para. 77; Cody, at para. 65. As such, the application judge should have examined more closely the specific circumstances of this case when attributing periods of time to intake.

[30] A close review of the record reveals that there was no need for an extended intake period of five months. The appellant had retained counsel upon his arrest on May 29, 2013 and was represented by that counsel at his bail hearing on May 30, 2013. The appellant's first appearance was on July 19, 2013, but no disclosure was forthcoming. Initial disclosure was made on August 23, 2013. Defence counsel sent a letter to the Crown on September 13, 2013 seeking further specific disclosure. Additional written requests for this disclosure were sent on September 17, October 17, and November 7, 2013, but for months, there was no response to defence counsel's letters. Defence counsel also informed the presiding judicial officer on October 4, 2013 that he had sent the Crown a letter seeking further disclosure. On the appellant's fifth appearance in the Ontario Court of Justice, on November 8, 2013, counsel indicated that he had recently received disclosure and required time to review it. The record shows that the defence proactively sought further disclosure with an interest in moving things along. While the case involved voluminous disclosure, there is no sufficient explanation on the record for the lengthy delay in making that disclosure.

[31] The Crown argues that an intake period of five months is entirely appropriate for a case involving the amount of data extraction and number of witnesses in this case and falls squarely within a similar spectrum for intake as set out in St. Amand.

[32] St. Amand is entirely distinguishable from the present case. It was a child pornography case involving 3,900 unique images that had to be extracted by way of extensive forensic examination after the charges were laid. This court upheld the trial judge's finding that the neutral intake period was 11.5 months based on the particularly complex circumstances in that case, which are not present here:

First, the intake period of delay. Recall that the sentencing judge identified 11.5 months (April 17, 2013 to March 31, 2014) as neutral inherent delay. In doing so, he addressed the complexity of a child pornography prosecution, holding, at para. 38:

That the initial intake period was longer than might have been expected is explained, in part, by the nature of the charge and the fact that police analysis of the computer files in the accused's hard drive is a tedious, time consuming process, and it takes place, for the most part, after the charge is laid. As a result, Crown disclosure is delayed, as are Crown-defence discussions and negotiations. There is some appellate recognition of the lengthier post-charge investigation process in child pornography cases. [Emphasis in original; Citation omitted.]

This was a proper and necessary consideration under the Morin framework. There can be no dispute that much of the time consuming forensic investigation in a child pornography case occurs after the charge, leading to a lengthier intake period: R. v. Stilwell, 2014 ONCA 563, 324 O.A.C. 72.

[33] In the present case, the focus of the Crown's case was on a relatively limited number of electronic text messages, sexually explicit photographs and videos, and the statements of 13 witnesses, including the 3 complainants. While the Crown contended that thousands of text messages formed part of the disclosure, there was no evidence as to the content of all of those messages and whether the messages were duplicates. Moreover, while the police conducted a technical analysis to extract relevant images and videos from the appellant's electronic devices, this case was markedly different from many child pornography cases where the accused has downloaded hundreds of thousands of images and videos onto a computer. Finally, in this case, the police began investigative work and collected evidence from some of the complainants before the charges were laid.

[34] As a result, we agree with the appellant that the application judge erred in attributing five months to the neutral intake period and that two and one half months is the appropriate attribution. The remaining two and one half months should be characterized as Crown delay.

b) Adjournment of the exit judicial pre-trial

[35] The appellant argues that the application judge erred in characterizing as neutral delay the adjournment of the exit judicial pre-trial caused by the pre-trial judge's unavailability.

[36] As previously noted, the Crown accepts the application judge's characterization of this period as neutral delay.

[37] In our view, the application judge erred.

[38] Even under the former Morin analysis, this delay would have been treated as institutional delay. Institutional delay begins to run when counsel are ready to proceed but the court is unable to accommodate them: R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 32. That was the case here: the parties were ready to proceed on September 2, 2015, but the court was unable to accommodate the exit judicial pre-trial on that day. As a result, the matter was adjourned to October 19, 2015.

[39] Therefore, the application judge erred in treating the 1 month and 17 days as neutral delay.

c) Total institutional delay under the Morin analysis

[40] The application judge calculated a total of 11.75 months of Crown and institutional delay in the Ontario Court of Justice and just about 8 months of institutional delay in the Superior Court of Justice. Therefore, according to his calculations, the combined Crown and institutional delay for the proceedings totalled about 19.75 months, which exceeds the 14 to 18 months under the Morin guideline by 1.75 months.

[41] However, for the reasons outlined above, the combined Crown and institutional delay should have been about 23.75 months, calculated as follows: approximately 15.75 months of Crown and institutional delay in the Ontario Court of Justice and 8 months in the Superior Court of Justice. This combined Crown and institutional delay exceeds the high end of the Morin guideline by about 5.75 months.

d) Inferred prejudice

[42] The appellant submits that the application judge also erred in his analysis of prejudice in this case, particularly because he failed to consider and give effect to inferred prejudice.

[43] We agree.

[44] As we have said, prejudice continues to play an important role in the Jordan transitional circumstance analysis: Cody, at paras. 69-71; St. Amand, at para. 108. Delay may adversely affect an accused's liberty, security of the person, and fair trial interests: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 30. While prejudice from delay may be actual, it may also be inferred from the length of delay even in the absence of evidence of specific prejudice: Morin, at p. 801; Godin, at para. 31; and R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at para. 29. As Sopinka J. noted in Morin, at p. 801, the longer the delay, the more likely that an inference of prejudice will be drawn. Therefore, prejudice must not be considered separately from the length of the delay itself: Godin, at para. 31.

[45] The application judge erred by failing to consider and give any weight to the inferred prejudice that the appellant experienced based on the length of the delay in bringing him to trial: Williamson (ONCA), at paras. 54-57; Steele, at paras. 28-29. The application judge analyzed the issue of prejudice only in terms of actual prejudice. However, as this court recognized in Williamson (ONCA), at para. 54, "[P]roof of actual prejudice is not invariably required to establish a s. 11(b) violation." While the application judge acknowledged that the appellant suffered prejudice, he found the appellant did so mostly because of the nature of the charges. The application judge failed to consider that "the mere passage of time causes prejudice to the accused": R. c. Huard, 2016 QCCA 1701, at para. 28; R. c. Rice, 2018 QCCA 198, 44 C.R. (7th) 83, at para. 20. Moreover, this court has noted that when an accused must wait almost three years for trial, even in relatively complex cases, it may be proper to infer significant prejudice: Williamson (ONCA), at paras. 55-57; see also R. v. Ralph, 2014 ONCA 3, 313 O.A.C. 384, at para. 16, leave to appeal refused, [2014] S.C.C.A. No. 262.

[46] In the present case, the appellant waited over three years for his trial in a case that was not particularly complex. There was a total delay of about 43 months in bringing the appellant to trial on serious offences. After deduction of defence delay and discrete events, the remaining delay in the Jordan framework is about 34 months and 10 days. Under the transitional exceptional circumstance analysis, just over half of the total delay of about 43 months is attributable to combined Crown and institutional delay (about 23.75 months).

[47] The delay in this case is comparable to that in Steele. There, the trial judge similarly failed to appropriately weigh the inferred prejudice that the accused suffered as a result of the 35-month delay in bringing him to trial. Of that delay, 26 months were attributable to Crown and institutional delay. Rosenberg J.A. held that, despite the seriousness of the offences and society's interest in a trial on the merits, the length of the delay and the unsatisfactory explanation for it were simply inexcusable. He therefore substituted a stay of the proceedings: Steele, at paras. 34-36.

[48] In our view, the application judge erred in finding the prejudice caused by the delay in this case to be insignificant. As this court observed in Williamson (ONCA), at para. 57, "[t]he stigma of being under a public cloud should not be lightly dismissed."

[49] The absence of haste and the accused's general level of diligence may inform the court's assessment of prejudice: Cody, at para. 70; Rice, at para. 202; and see also Williamson (ONCA), at para. 67. In the present case, there is no evidence to suggest that the defence acted without haste or diligence. As discussed above, the defence made repeated requests for further disclosure from the Crown in the Ontario Court of Justice.

[50] In failing to consider inferred prejudice, the application judge incorrectly concluded that the balance weighed in favour of the genuine public interest in a trial on the merits: Steele, at para. 33.

[51] Recall that the transitional exceptional circumstance analysis operates within the Jordan structure. Jordan instructs that the presumption of prejudice to the accused because of unreasonable, unjustified delay still looms large in the analysis. As the majority stated at para. 81:

Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay. [See also Manasseri, at para. 378.]

[52] Here, the delay exceeded the presumptive ceiling under Jordan and the 14 to 18 months under the Morin guideline. In these circumstances, there is no doubt that the appellant suffered prejudice from the prolonged exposure to criminal proceedings resulting from the delay: Godin, at para. 34.

[53] The purpose of s. 11(b) is to expedite trials and minimize prejudice, not to avoid trials on their merits: Morin, at p. 802. While the offences were very serious in this case, they are outweighed in our view by the inferred prejudice caused to the appellant by the excessive and unreasonable delay in bringing him to trial. Applying a contextual analysis, sensitive to the manner in which the Morin framework previously operated, we conclude that the application judge erred in holding that transitional exceptional circumstances justified the delay in this case.

D. Conclusion

[54] Given the legal errors made by the application judge, his resulting conclusion that the delay was reasonable cannot be sustained. As we have explained, after deducting the correct amount of time for the delay caused by the adjournment of the exit judicial pre-trial conference, the remaining delay is about 34 months and 10 days, which exceeds Jordan's presumptive ceiling. There are no transitional exceptional circumstances that justify the delay in this case. Even under the Morin framework, the delay was unreasonable.

E. Disposition

[55] For these reasons, we allow the appeal, set aside the convictions and sentence, and stay the proceedings against the appellant.

Released: December 6, 2018

"David Watt J.A."

"G. Pardu J.A."

"L.B. Roberts J.A."

Footnotes

[1] In relation to M.B., the appellant was charged with luring for the purpose of making child pornography (s. 172.1) and making child pornography (s. 163.1(2)). For the purposes of those sections, "child" is defined as a person who is or appears to be under the age of 18 years.

[2] On appeal, the appellant does not contest the application judge's treatment of the two-month delay between May 6, 2015 and July 6, 2015, caused by the confusion over the Dawson application: see R. v. Dawson (1998), 39 O.R. (3d) 436 (C.A.). However, the appellant does contest defence counsel's concession of the 1 month and 29-day period between March 2 to April 30, 2015, and the application judge's characterization of this period, as defence delay. While raised as an issue on appeal, it is not necessary to deal with this argument given our determination that the delay, even including the reduction of attributed defence delay, was unreasonable in this case.

[3] The bail hearing was scheduled to commence on May 29, 2013, but the judge did not commence the bail hearing on that day due to insufficient time. It was scheduled to begin the next day, May 30, 2013.

[4] From the transcript, dated November 8, 2013, it appears that the appellant received three discs of disclosure a week before the November 8 appearance, which contained disclosure he had not requested in his previous letters. It appears that the Crown responded to the letter sent on November 7, 2013 that sought precise disclosure.

[5] The transcript reveals that there were duplicates of sexually explicit photographs in this case. The trial judge found that A.P. had provided approximately 12-13 discrete sexually explicit photographs and 5 videos to the appellant, and M.B. provided approximately 3 discrete sexually explicit photographs. Of the 10 witnesses (not the complainants), the Crown filed as part of the exhibits a total of approximately 5 discrete sexually explicit photographs provided by 2 witnesses, who were over 18 years old when the photographs were sent to the appellant.

[6] To reiterate, two and one half months should have been attributed to the Crown in the Ontario Court of Justice as the application judge erred in attributing five months to neutral intake time. Further, 1 month and 17 days should have been attributed to institutional delay in the Ontario Court of Justice because the application judge mischaracterized the delay related to the adjournment caused by unavailability of the pre-trial judge as neutral.