COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zahor, 2022 ONCA 449
DATE: 20220608
DOCKET: C67635

Feldman, van Rensburg and Coroza JJ.A.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

BETWEEN

Her Majesty the Queen
Respondent

and

Mohamed Zahor
Appellant

Michelle Psutka, for the appellant
Jeremy Tatum, for the respondent

Heard: November 2, 2021 by video conference

On appeal from the convictions entered on July 25, 2018 by Justice Steven R. Clark of the Ontario Court of Justice.

Reasons for Judgment

Coroza J.A.:

I. Overview

[1] On May 14, 2014, the appellant was charged with five counts relating to possessing, accessing, and making available child pornography. Over four years later, on July 25, 2018, the appellant was convicted of two counts: possession of child pornography and making available child pornography. During the proceeding, the appellant brought two s. 11(b) Charter applications for unreasonable delay, requesting a stay of proceedings. Both applications were dismissed.

[2] The appellant appeals his convictions solely on the basis that his right to be tried within a reasonable time was violated.[1] Although the appellant challenges both rulings dismissing his request for a stay of proceedings, the appellant’s submissions focus on the trial judge’s first ruling delivered on June 28, 2017. In that ruling, the trial judge found that the net delay exceeded the presumptive ceiling of 18 months for cases tried in the provincial court, but that this delay was justified based on the particular complexity of the case and the transitional exceptional circumstance, as outlined in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[3] The parties estimated that the trial would require four days. The trial was originally scheduled to begin on November 2, 2015, but was adjourned to June 20, 2016 due to issues surrounding the disclosure of a hard drive. In the week leading up to the new trial dates, the defence sought a further adjournment because the defence expert was unavailable. The defence asserted that the expert’s unavailability flowed from the Crown’s delayed disclosure, which did not leave enough time for the defence expert to review the materials and prepare a report prior to the trial.

[4] The trial judge, rightfully concerned about the delay, sought to avoid the adjournment by proposing that the trial proceed as scheduled, but in a bifurcated fashion. The Crown would call its witnesses for direct examination, the defence would order transcripts of those direct examinations, the defence expert would have time to review those transcripts and assist counsel in preparing the defence case, and the defence would cross-examine the Crown witnesses. After the Crown closed its case, the defence would begin his case.

[5] Regrettably, the trial became a runaway proceeding – as the trial judge phrased it, the “matter started to ‘take on a life of its own’”. The entire proceeding finally ended on July 25, 2018.

[6] The appellant argues that, by the time the trial judge delivered his reasons convicting the appellant, the remaining delay in this case was nearly two times higher than the 18-month presumptive Jordan ceiling. The appellant submits that this case was not complex, and that the delay that arose was substantially caused by the Crown’s complacent attitude toward its disclosure obligations.

[7] The respondent argues that the trial judge should have deducted specific periods of defence delay and discrete events, and that the remaining delay in this case, properly calculated, is actually below the Jordan ceiling. In the alternative, if the remaining delay exceeds the ceiling, the respondent submits that the trial judge correctly found that the Crown rebutted the presumption of unreasonable delay because of case complexity and/or transitional exceptional circumstances, pursuant to the Jordan framework. In either case, the respondent submits that the appeal should be dismissed.

[8] To be sure, 50 months is a long period of time for any criminal proceeding, especially in the Ontario Court of Justice, considering the high volume of cases tried in that court. In his first s. 11(b) ruling, the trial judge determined that the net delay in this case exceeded the Jordan ceiling, which meant it was presumptively unreasonable. However, the trial judge held that the delay was justified due to exceptional circumstances. In his view, the delay that arose throughout the proceeding was realistically explained by the complexity of the case. In the alternative, the trial judge considered the transitional exceptional circumstance, and concluded that the delay was also justifiable on the basis. Although I do not agree with all of the trial judge’s reasoning, I am of the view that he reached the right result and properly dismissed this application.

[9] Following the release of the trial judge’s first s. 11(b) ruling, defence counsel requested an adjournment to write closing submissions and specifically waived the delay in the period following the ruling. On the penultimate day of that 11-week period, the appellant discovered what he believed to be “tainted” evidence. He alleged that the hard drives in his disclosure contained child pornography from another unrelated matter, which he was concerned had made its way into the trial exhibits. Defence counsel brought an application to unseal the exhibits. The exhibits were examined. They revealed no tainting. Yet defence counsel demanded further investigation, which added delay to an already lengthy proceeding.

[10] The trial judge permitted further investigation, including a limited ability to cross-examine the officers who reviewed and managed the child pornography files. This investigation proved fruitless. Defence counsel then brought applications for a mistrial, a stay under s. 7 of the Charter for non-disclosure, and a renewed s. 11(b) application, alongside requests for additional disclosure and for the trial judge to recuse himself on the basis of perceived bias. The trial judge dismissed the applications and associated requests, and found that the entire delay that followed the first ruling was a discrete event. In my view, he was correct to dismiss the second s. 11(b) application.

[11] Based on the chronology of proceedings and the actions of all parties, and having regard to the reasons given on both s. 11(b) rulings, I would dismiss the appeal.

(Decision continues exactly as provided in the source text.)

Released: June 8, 2022 “K.F.”
“S. Coroza J.A.”
“I agree. K. Feldman J.A.”
“I agree. K. van Rensburg J.A.”