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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20211203 DOCKET: C68899

Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

J.P. Respondent

Counsel: Jeremy D. Tatum, for the appellant Brian Snell, for the respondent

Heard and released orally: November 29, 2021

On appeal from the order of Justice Michael D. McArthur of the Superior Court of Justice, dated November 19, 2020, staying the charges against the respondent, with reasons reported at 2020 ONSC 6982.

Reasons for Decision

[1] This is a Crown appeal from a stay of proceedings arising out of a finding of s. 11(b) Charter delay. The Charter application proceeded on an agreement that the total delay was 35 months and 22 days. The application judge concluded that three periods of time had to be subtracted from that total delay: (1) 31 days for a discrete exceptional event; (2) 88 days attributable to defence delay; and (3) another 39 days attributable to defence delay.

[2] Bearing in mind these three periods of time, and in accordance with the principles set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the application judge subtracted 158 days from the total delay, leaving a delay of 30 months and 16 days. As the delay exceeded the Jordan ceiling by 16 days, the application judge stayed the proceedings.

[3] The Crown alleges the application judge erred by failing to identify numerous periods of time as either defence delay or discrete exceptional circumstances. Given the conclusion we have reached on two of those alleged errors, we need not review them all.

[4] First, there is no dispute that the application judge erroneously used June 30, 2018 as the start of a period of defence delay when he should have used June 20, 2018. On agreement, this accounts for another ten days of defence delay. That being so, on the application judge’s analysis, there is agreement that the Jordan ceiling was exceeded by only six days.

[5] This leaves us to consider whether the application judge erred by failing to correctly characterize multiple other periods of time as either defence delay or discrete exceptional circumstances. The appellant maintains that, had these periods of time been properly characterized, any one of them would have resulted in a delay well below the Jordan ceiling. We focus on only one period of time that has this effect.

[6] The application judge erred when he failed to identify a 65-day period of time, commencing August 14, 2019, as defence delay. The application judge said he could not conclude that it was defence delay because it was unclear from the record that the Crown was available during that period of time and, therefore, it was unclear whether the delay was caused solely by the defence.

[7] The court in Jordan makes clear that there are two types of defence delay: (1) delay waived by the defence; and (2) “delay caused solely by the conduct of the defence”: at paras. 61, 63. With respect to the first type of delay, waiver, it may be “explicit or implicit, but in either case, it must be clear and unequivocal”: Jordan, at para. 61. In our view, the colloquy in court during the August 13, 2019 court appearance reveals an implicit, yet clear and unequivocal, waiver by the defence.

[8] That appearance was devoted to setting a judicial pretrial date. The defence made clear that counsel could not be available to attend a judicial pretrial for at least 65 days. While the court said that it had much earlier dates available, and while the Crown said that there were at least two assignment courts available before that time, the defence was not available. So clear is this fact that the following exchange occurred:

The Court: All right. And I think the record will clearly reflect that we’re going that far down the road because of [defence counsel’s] schedule.

The Court: This is a delay that lies at the feet of the Defence. I take it we’d be able to offer them dates in August and early September?

Trial Coordinator: Yes, that’s correct, Your Honour.

The Court: Yes. Okay. All right, so the record’s clear. So the request is that we set a [judicial pretrial] after what date?

Agent for the Defence: October 16th?

No one at the August 13, 2019 hearing disputed the presiding judge’s characterization of the delay falling at the “feet of the Defence.” Most notably, the defence did not object to that characterization. The defence can only be taken to have agreed with its accuracy. This was an implicit, yet clear and unequivocal, waiver of over two months’ time that the application judge did not take into account.

[9] It was an error of law to fail to characterize the time subsumed by the defence request for such a late judicial pretrial as defence delay. When this period of time is subtracted from the net delay, the resulting delay is well under the Jordan ceiling.

[10] The respondent did not take the position that, even if the delay fell below the 30-month Jordan ceiling, it was nonetheless unreasonable delay.

[11] Accordingly, the appeal is allowed, the stay of proceedings is set aside, and the matter is remitted to the Superior Court of Justice for trial.

“Fairburn A.C.J.O.”

“K. Feldman J.A.”

“A. Harvison Young J.A.”