COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anderson, 2025 ONCA 172[^1]

DATE: 20250307

DOCKET: COA-23-CR-1197

Fairburn A.C.J.O., Dawe J.A. and Code J. (ad hoc)

BETWEEN

His Majesty the King

Respondent

and

John Sean Anderson

Appellant

Joseph Wilkinson and Aditi Iyer, for the appellant

Charmaine M. Wong, for the respondent

Heard: January 7, 2025

On appeal from the conviction entered on November 17, 2022, and the sentence imposed on October 25, 2023, by Justice James R. Chaffe of the Ontario Court of Justice.

Code J. (ad hoc):

A. OVERVIEW

[1] The appellant was tried in the Ontario Court of Justice on 19 counts alleging sexual assault, criminal harassment, and breach of recognizance. The offences extended over a six-year period, between 2015 and 2021. There were 10 separate female complainants. At the end of a lengthy trial, Chaffe J. convicted the appellant on six counts and acquitted him on 13 counts. He was sentenced to five years in jail, less approximately 20 months due to Summers and Duncan credits or mitigation.

[2] The six convictions were for sexually assaulting two of the complainants (A.T. and T.G.), criminally harassing three of the complainants (T.G., A.B. and S.M.), and failing to comply with his recognizance by contacting one of the complainants (S.P.). The joinder at one trial of 19 counts involving 10 complainants was based on a broad theme that connected all these counts, namely, the appellant’s use of social media to try to meet up with women in Ottawa, and the nature of the ensuing contact between the appellant and the complainants. There was no severance application. At the end of the trial, the Crown sought the admission of evidence across counts. The trial judge denied the various similar fact evidence applications brought by the Crown. As a result, the trial judge assessed the evidence separately in relation to each count and each complainant.

[3] The main ground of appeal alleges that the trial judge erred in dismissing the appellant’s s. 11(b) Charter of Rights application. In addition, there are three fact-specific grounds of appeal against conviction that allege misapprehension of evidence and unreasonable verdict. These grounds relate to three of the complainants and four of the counts. Finally, there is a sentence appeal that seeks to reduce the four-month sentence imposed for breach of recognizance. The sentence appeal also seeks a constitutional exemption from being required to register under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA), which the trial judge denied.

[4] At the end of oral argument, judgment was reserved. These are my reasons explaining why I would dismiss both the conviction and sentence appeals.

[5] Given that the main ground of appeal relates to s. 11(b) of the Charter, and in light of the narrow scope of the other grounds of appeal, the relevant facts relating to each ground of appeal will be set out below when analysing the issues.

B. UNREASONABLE DELAY

(i) Introduction

[6] Determining the starting point for the appellant’s s. 11(b) right to trial within a reasonable time in this particular case was not easy. The first charges, relating to only one complainant, were laid on October 1, 2020. A number of additional complainants came forward and the bulk of the charges were laid on November 20, 2020. Additional allegations and another complainant came forward approximately one year later, on September 1, 2021 and January 14, 2022. When this occurred, all counsel responsibly agreed that these further charges should be absorbed into the existing trial schedule, in order to avoid two trials and inevitable delays. Experienced counsel for the appellant agreed that the Jordan presumptive ceiling for s. 11(b) delay in this large joint trial should begin to run from November 20, 2020 when the bulk of the charges were laid: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, 335 C.C.C. (3d) 403.

[7] The trial evidence concluded on August 30, 2022 and submissions were heard and completed on September 23, 2022. The parties agree that the total time for calculating compliance with the Jordan presumptive ceiling was from November 20, 2020 until September 23, 2022. This was 22 months and 3 days. Given that the case was tried by judge alone in the Ontario Court of Justice, that total time was 4 months and 3 days over the applicable 18-month Jordan presumptive ceiling. The trial judge deducted two periods of one month each, as “defence delay.” As a result, the net delay pursuant to Jordan was 20 months. Finally, the trial judge found that there were two “exceptional circumstances” that applied in this case, namely, the COVID-19 pandemic and case complexity. In light of these two circumstances, the trial judge concluded that the appellant “received his trial within a reasonable time.” He dismissed the s. 11(b) Application.

[8] The appellant challenges the two one-month deductions for “defence delay” and the two findings of “exceptional circumstances.”

(ii) The importance of scheduling an early JPT and the first period of “defence delay”

[9] The first deduction for “defence delay” relates to the “intake period.” It extended from November 20, 2020, when the bulk of the charges were laid, until June 29, 2021 when trial dates were set in the Ontario Court of Justice. This initial seven-month period of delay was lengthy, especially in a case where the election was for trial in the Ontario Court of Justice. Because it took seven months just to confirm the appellant’s election, to then conduct a Judicial Pre-Trial (JPT), and to finally set trial dates, the Court was left with only 11 months before the 18-month Jordan presumptive ceiling would be reached. At this point, the case was still at its early stages. Furthermore, this was a case where counsel were seeking 4 days for pre-trial motions, 21 days for trial, and an out of town judge to conduct both the JPT and the trial. This latter feature of the case was due to the fact that one of the 10 complainants was the daughter of a judge on the Ontario Court of Justice who sits in Ottawa. Having only 11 months to both schedule and complete this kind of relatively challenging trial inevitably put the administration of justice in Ottawa under significant pressure.

[10] Both at trial and on appeal, the Crown and the defence have taken significantly different positions as to who was responsible for the seven-month long “intake period.” The Crown at trial sought to characterize almost six months of this period as “defence delay”, due to a number of causes, including the following: (i) delays in retaining outside counsel from Toronto (because of the conflicts issue caused by the complainant who was the daughter of a local Ottawa judge); (ii) delays in deciding whether to seek severance of any counts in order to solve the conflicts problem; (iii) delays in deciding between Superior Court and Ontario Court elections (in a case where none of the charges were entitled to a preliminary inquiry); (iv) delays due to bail issues taking priority; and (v) delays in scheduling a JPT on the basis that Crown disclosure was not yet complete. The defence, on the other hand, took the position, both at trial and on appeal, that the only reason for the lengthy seven-month “intake period” was the Crown’s failure to make timely disclosure of three items, namely: a search warrant Information; one complainant’s video statement; and the data extracted after the police completed forensic analysis of the appellant’s cell phone and computer.

[11] A substantial detailed factual record was filed before the trial judge. He analysed it and made a number of findings about the “intake period.” This part of his reasons extends for some six pages of a carefully written judgment. He concluded as follows:

. . . it is clear that the delays in this case regarding election, conflict, severance, and disclosure could have been dealt with much sooner in the process with the intervention of a judicial officer in a judicial pre-trial. To some extent, the defence was in the driver’s seat regarding the scheduling of a judicial pre-trial prior to election (the Crown being unaware of which bench to approach for a judicial pre-trial), but this did not seem to impact on the Crown seeking and getting a judicial pre-trial while the defence election was still unknown. Both the Crown and the defence could have sought a judicial pre-trial much sooner in the process – undoubtedly with a salutary effect. [Emphasis added].

[12] The above conclusion, that an early JPT should have been scheduled in order to resolve the various problems in the case, was reinforced by a number of further findings made by the trial judge. In relation to the conflict issue, he noted that it was not until March 10, 2021 that defence counsel from Toronto was retained and became involved in the disclosure and JPT processes. In relation to the election issue, the trial judge noted that the appellant’s initial local counsel in Ottawa had been “inclined to have this matter tried before the Superior Court” and “was also inclined to have a judicial pre-trial with a Superior Court judge until March 2, 2022, when he wrote that a judicial pre-trial in the Ontario Court of Justice should happen first.” Finally, in relation to the three outstanding Crown disclosure issues, the trial judge found that the search warrant Information and the video statement of one complainant were “unjustifiably delayed,” and that the cell phone and computer data delays were due to “chronic shortage of police resources in this area of investigation.”

[13] It is apparent from the trial record and from the trial judge’s findings that there were a number of contributing causes to the seven-month long “intake period.” In my view, resolving the conflicts, severance, election, and disclosure problems that arose during this period would undoubtedly have been assisted by an early JPT. As the trial judge put it:

. . . given the complexity of the issues, I find [the early delay in the case] is mostly attributable to not seeking an earlier judicial pre-trial . . . It is clear in hindsight that this process could have benefitted from an earlier intervention in the form of a judicial pre-trial. [Emphasis added].

[14] The trial judge concluded that two months of the seven-month “intake period” was unreasonably delayed “due to the late engagement of the bench in a judicial pre-trial.” He apportioned responsibility for this two-month period of unreasonable delay “equally” between the Crown and the defence. In the result, one month of “defence delay” was deducted from the total delay due to failure to schedule an early JPT.

[15] In my view, the trial judge’s conclusion on this point is reasonable and discloses no error. It is apparent that there were a number of complex reasons for the early delays that this case was encountering. It is well established that engaging judicial assistance at an early JPT is the best way to resolve these kinds of difficulties. Particularly in a case like this, where there is no statutory right to a preliminary inquiry and where the appropriate court for a JPT depends entirely on the defence election, there must be an early JPT. In this way, the parties can engage a judge who will assist in resolving the election issue in a timely way. If there was delayed disclosure that was legitimately preventing the defence from making its election, a judge at a JPT could make case management orders.

[16] For example, the JPT judge could become seized and keep bringing the parties and the officer-in-charge back for weekly ongoing JPTs, until the disclosure and election issues were resolved. See, e.g. R. v. Gandhi, 2016 ONSC 5612, at para. 33. Alternatively, if the three outstanding items of disclosure had little or no legitimate impact on the ability of the defence to make its election, a judge at a JPT could endorse or state on the record that the defence election was being unreasonably delayed, that the election should be made forthwith, and that a target trial date should be set in the trial court of choice. See, e.g. R. v. Schertzer et al, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 93-94; R. v. Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at paras. 44-7; R. v. L.L., 2023 ONCA 52, at paras. 7 and 15-18.

[17] The Supreme Court’s decision in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, 337 C.C.C. (3d) 1, at para. 6, illustrates this point. Moldaver J. (on behalf of the unanimous Court) commended defence counsel in that case for taking “proactive steps throughout, from start to finish, to have his case tried as soon as possible.” Included in the commendable “proactive steps” taken by counsel was that he had “pushed for a pre-trial conference or case management.” The modern Jordan framework for s. 11(b) delay encourages “both sides” to engage in “proactive, preventative problem solving” and encourages courts to develop “robust case management and trial scheduling processes.” See: R. v. Jordan, at paras. 112-114.

[18] The trial judge’s approach to the overly long seven-month “intake period,” attributing one month to “defence delay,” was entirely consistent with the above line of authority. When pressed on this point at the end of oral argument, Mr. Wilkinson responsibly conceded that “election dependent” cases like this one, would benefit from an early JPT in the Ontario Court of Justice in order to address and resolve the election issue. I agree with this concession.

[19] In conclusion concerning this first period of “defence delay,” the trial judge was not suggesting any fault or misconduct by apportioning one month of the early delays to the defence. The trial judge correctly noted that “defence delay” includes practices that “exhibit marked inefficiency or marked indifference toward delay.” This is a direct quote from the unanimous Supreme Court decision in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, 349 C.C.C. (3d) 488, at paras. 31-5. In allowing this case, with its multiple early problems, to languish for seven months without an election and without judicial intervention, the Crown and the defence both “exhibited marked inefficiency.” It was appropriate, in my view, to attribute two months of delay during the “intake period” to the failure to schedule an early JPT. It was also appropriate to apportion that delay equally between the Crown and the defence, consistent with the modern “contextual approach” to assessing “defence delay” which requires that “All relevant circumstances should be considered to determine how delay should be apportioned.” See: R. v. Hanan, 2023 SCC 12, 426 C.C.C. (3d) 1, at para. 9, rev’g on other grounds R. v. Hanan, 2022 ONCA 229, 412 C.C.C. (3d) 233, at paras. 47-59; R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, 411 C.C.C. (3d) 279, at paras. 8-10; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 46; R. v. Liu, 2024 ONSC 2022, at paras. 21-24.

(iii) Abandoning the first pre-trial motion without timely notice and the second period of “defence delay”

[20] The second one-month deduction for “defence delay” made by the trial judge, arose because two days scheduled for the first pre-trial motion were completely lost. When trial dates were being set on June 29, 2021, the earliest scheduled dates were for two pre-trial motions. The first motion was to be heard on December 7 and 8, 2021 and the second motion was to be heard on January 14 and February 15, 2022. These dates were well in advance of the trial proper, which was scheduled to commence on April 25, 2022 and was to continue on various dates in May and June 2022. The first motion was brought pursuant to s. 276 and s. 278 of the Criminal Code and the second motion was brought pursuant to s. 8 and s. 24(2) of the Charter in relation to a search warrant.

[21] It can be seen that there was over five months between the set date appearance in late June 2021 and the first pre-trial motion in early December 2021. That motion was abandoned by the defence one week before it was scheduled to proceed on December 7, 2021. As a result of this late notice of abandonment, the trial judge found that “there was insufficient time to bring other pre-trial applications forward to use this time.” This development became even more significant when the second pre-trial motion encountered various difficulties. That Charter motion had merit and it ended up requiring more time than the two days that had been scheduled for January 14 and February 14, 2022. In addition, an out of town judge had been appointed to hear the case because of the conflict issue. He was double-booked on January 14, 2022 because he was seized in the morning with an ongoing preliminary inquiry in North York, and he was now scheduled to hear the s. 8 motion in this case in Ottawa on that same day (the motion could proceed by Zoom videoconference in the afternoon). There were further problems on January 14, 2022 because one of three police witnesses who the Crown planned to call on the s. 8 motion was ill. Defence counsel was also double-booked with a murder bail in Sudbury and with the s. 8 motion in this case in Ottawa. In all these circumstances, it was eventually agreed that the appellant would simply be arraigned on January 14, 2022. As a result, the first day of the s. 8 Charter motion was lost.

[22] These delays of the second pre-trial motion were exacerbated, once it commenced on the second scheduled date, February 14, 2022. An unexpected medical issue arose in the afternoon and the trial judge was unable to continue. Two additional days were set for the motion. On April 7 and 11, 2022, the motion proceeded and concluded. The trial judge allowed the s. 8 and s. 24(2) Charter motion and excluded the evidence that had been seized with a warrant from the appellant’s cell phone and computer.

[23] Some of the above challenging history of the two pre-trial motions in this case was unforeseeable and perhaps unavoidable. However, that history underlines the importance of setting a realistic and informed schedule for motion proceedings, complying with that schedule, and resorting to early judicial case management if and when problems arise. When the Crown’s conduct contributes to delays during the pre-trial stages of a case, those delays are included in the 18‑month (or 30-month) Jordan presumptive ceilings, with sometimes fatal s. 11(b) consequences for the case. See, e.g. R. v. Wookey, 2021 ONCA 68, at paras. 100-106. Conversely, when the defence unreasonably causes delays at this pre-trial stage, those delays should be deducted from the ceiling as “defence delay.” Otherwise, the defence would “be allowed to benefit from its own delay-causing conduct,” as the majority put it in R. v. Jordan, at para. 60.

[24] In this case, counsel had scheduled two full court days for the first pre-trial motion. Counsel had over five months to prepare that motion. At some point in that five-month period, as filing deadlines approached, counsel must have developed real doubts about either the merits or the necessity for the motion. At that point, the modern Jordan and Cody approach required counsel to adopt “proactive” practices that prevent “marked inefficiency,” meaning that counsel should have brought the Charter motion forward in order to make use of the two full days of scheduled court time that would otherwise be lost. It is clear that the Charter motion would have benefited from early judicial case management, even if it was not yet ready to be heard in December 2021. Charter s. 8 search warrant motions can often be shortened and expedited, with judicial assistance and direction as to the form of evidence to be tendered at an upcoming hearing and as to the issues that will require either full oral or only written argument. See: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 180 C.C.C. (3d) 498 (Ont. C.A.), at para. 57; R. v. Haevischer, 2023 SCC 11, 425 C.C.C. (3d) 411, at para. 102.

[25] In two forceful decisions that are relevant to this issue, the Court of Appeal has emphasized the importance of setting a schedule for motions, complying with that schedule, and bringing “difficulties to the attention of the court” in order to allow for “proactive case management.” In both cases, motions were summarily dismissed when they were not brought in accordance with the schedule that had been set. The two decisions were authored by Doherty J.A. In the first case, R. v. Oliver and Morrison (2005), 2005 CanLII 3582 (ON CA), 194 C.C.C. (3d) 92 (Ont. C.A.), at para. 29, he stated:

Trial judges are charged with the responsibility of ensuring the orderly administration of criminal justice. This obligation includes setting schedules for the conduct of criminal trials. Counsel are expected to comply with the schedules set by the court. This is no less true in criminal matters than in civil matters. When, as some times happens, difficulties develop in meeting schedules, counsel are expected to bring those difficulties to the attention of the court and opposing counsel as soon as possible so that the court may amend the schedule, if deemed appropriate. [Emphasis added].

Fifteen years later, in R. v. Kazman et al, 2020 ONCA 22, at para. 16, Doherty J.A. again stated:

The broader administration of justice concerns were placed front and centre in the powerful reasons of the majority in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the constitutional right to a trial within a reasonable time and the litigation that claims based on that right have spawned, Moldaver J. for the majority stressed that all participants in criminal litigation have a joint obligation to work co-operatively to effectively use limited available resources in order to bring cases to completion within a reasonable time: see also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 1. No one, including self-represented accused, can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan, trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts. Appellate courts must support those proactive steps by showing strong deference to case management decisions: Jordan, at paras. 138-139. [Emphasis added].

[26] In my view, abandoning the s. 276 and s. 278 pre-trial motion without timely notice to the Court, had the inevitable effect of wasting two full days of “valuable court resources.” It also meant that the Court could not “amend the schedule” by bringing forward the Charter s. 8 motion. Finally, it prevented the court from making “proactive case management” orders in relation to that s. 8 motion, to paraphrase the above passages from Oliver and Kazman. For all these reasons, I am satisfied that there was “marked inefficiency” in the handling of the first pre-trial motion, as “defence delay” is defined in Cody. The trial judge did not err in deducting a further one month from the total delay as a result of the above events.

[27] The net delay in the present case was, therefore, 20 months. This was two months over the 18-month Jordan presumptive ceiling.

(iv) Exceptional circumstances and whether there was justification for delay over the presumptive ceiling

[28] The trial judge made findings that the two-month delay in this case that was above the Jordan presumptive ceiling was nevertheless reasonable due to two “exceptional circumstances.” He first made a finding about the COVID-19 pandemic and its impact on the case. He held that, “the backlog of cases needing trial time was quite well-developed when [the appellant’s] dates were selected in June of 2021 ... The delay created by the backlog is likely unquantifiable and there is no such particular evidence before me. However, it is obvious that the dates available for trial would have been sooner in a linear sense but for the impact of the pandemic.”

[29] The appellant notes that the trial judge was not a local judge with knowledge or information about the pandemic’s effect on available trial dates in Ottawa in June 2021. The appellant submits that there was an insufficient evidentiary basis to conclude that the COVID-19 backlog was an “exceptional circumstance” that caused delay in this particular case. I need not decide this issue. In my view, the second “exceptional circumstance” found by the trial judge – case complexity – provided a strong and sufficient basis for his conclusion that completing the case within 20 months was entirely reasonable.

[30] The “exceptional circumstance” for “cases that are particularly complex” was described by the majority in R. v. Jordan, at paras. 77 and 79 in the following terms:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

It bears reiterating that such determinations fall well within the trial judge’s expertise. And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. c. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83 (S.C.C.), at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. [Italics in the original].

[31] In R. v. Cody, at para. 64, the Court clarified that it is “the case as a whole” that must be “particularly complex”:

Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (, at para. 80). A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77 (emphasis deleted)). When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).

[32] This court has emphasized one of the above points made in Jordan, namely, that determining the overall complexity of a case is “well within the trial judge’s expertise.” As a result, the trial judge’s findings in relation to this issue are “entitled to deference.” See: R. v. Blake, 2023 ONCA 847, at para. 2. The trial judge relied on the following aspects of the case that made it “particularly complex”:

• there were “ten different complainants;”

• there were “multiple sets of criminal charges” covering a six-year period. They were laid on four separate dates, as the ongoing investigation proceeded;

• counsel “decided against severance” and agreed to a single trial. Counsel then worked “collaboratively to ensure this plethora of cases was kept on track”;

• the witnesses were “vulnerable” (and would presumably require careful preparation);

• there were two separate Charter applications, one relating to s. 8 and one relating to s. 11(b). Both applications took some time to prepare and complete;

• the Crown brought a similar fact application at the end of the case, seeking cross-count admissibility on three separate bases;

• the defence brought directed verdict applications at the end of the Crown case in relation to three of the 10 complainants;

• there was argument relating to the availability of lesser included offences that led to a written decision by the trial judge;

• the trial judge, the Crowns, and defence counsel were all brought in from outside Ottawa, as a result of the conflicts issue. This made the case “administratively complex” because of the existing schedules (and vacations) of these out of town parties (who all gave up vacation days in order to accommodate the trial). In addition, “the realities of conducting a trial in a different city” complicated “disclosure communications and litigation support.”

[33] The trial judge could have added two further features of this case to the above list: first, there was substantial disclosure; and second, the trial required 25 days in order to complete the evidence and submissions. This is a significant amount of trial time, especially in the Ontario Court of Justice. It meets the main Jordan criteria for case complexity, namely, “an inordinate amount of trial … time.” In terms of the further Jordan requirement, that the Crown must take concrete steps “to minimize the delay occasioned by such complexity,” the trial judge made the following findings:

Throughout the trial process, counsel, the Court, and the administrators of the Ottawa and Toronto courts worked cooperatively, proactively, and in the interests of the accused and the community to continue and finish the trial as soon as possible … On balance the conduct of counsel throughout was contrary to the culture of complacency decried in Jordan. Indeed, I find that counsel were generally practical, proactive, and concerned about keeping the trial on track and completed within a reasonable time, as required by s. 11(b) of the Charter.

There was abundant evidence to support this conclusion, in particular, significant efforts were made by counsel and the Court to find additional dates that kept this case close to the Jordan presumptive ceiling.

[34] I am satisfied that this case met the Jordan description of a “particularly complex case.” Indeed, the “hallmarks” of such a case, set out in the above passages from Jordan, were almost all present in this case. I agree with the trial judge’s conclusion that 20 months was a reasonable time in which to complete the trial of this “particularly complex case.”

[35] For all these reasons, the trial judge did not err in dismissing the s. 11(b) Charter application.

C. MISAPPREHENSIONS OF EVIDENCE

[36] The appellant submitted in his factum that the trial judge misapprehended evidence relating to the credibility of two complainants. These two grounds of appeal were not addressed during oral argument, although they were not abandoned.

[37] The alleged misapprehension of evidence relating to T.G.’s credibility is based on certain text messages that were not in evidence but that were used to refresh memory. It was “common ground,” as the trial judge put it, that the time-stamps on these text messages “were not accurate and were misleading.” As a result, their utility in helping to establish a reliable timeline of the relevant events was diminished. Nevertheless, the trial judge considered this aspect of the evidence and made careful findings. I am satisfied that there was no misapprehension of evidence relating to T.G.’s credibility.

[38] The alleged misapprehension of evidence relating to A.B.’s credibility was focused on her statement to the police. There is no dispute that the trial judge addressed this prior statement of A.B. in his reasons, and made certain findings about it. The appellant’s submission is simply that the trial judge did not appreciate the “significance” and the “impact” of the prior statement. In my view, these are questions of weight. There was no misapprehension of this evidence.

D. UNREASONABLE VERDICT

[39] The appellant submitted that the conviction for criminally harassing S.M. was an unreasonable verdict. There is no dispute that the trial judge correctly set out what he described as the “relatively complex” elements of the s. 264 offence of criminal harassment, early in his reasons. In addition, he quoted from some of the leading authorities that have interpreted those elements. Finally, he repeatedly showed that he understood the offence when he acquitted the appellant on a number of the s. 264 counts on the basis that there was insufficient proof of one element or another.

[40] In the appellant’s factum, it was submitted that there was “no evidence” in relation to all of the required s. 264 elements in the count relating to S.M. However, in oral argument the submission was that there was no evidence in relation to only one element, namely, whether S.M. reasonably feared for her safety as a result of the harassment. Counsel conceded that the trial judge accurately summarized the evidence in his detailed reasons relating to S.M. Those reasons set out a history of repeated unwanted contacts that caused S.M. to believe the appellant was “unpredictable and potentially violent.” She informed her family and her employer, as the unwanted contact escalated, and she warned the appellant that she would call the police. He ignored the warning and contacted her again. At this point, she went to the police and, following their advice, she told the appellant that she had “called the police and would proceed with harassment charges if he did not stop.” In the face of this “ample evidence that she feared his contact,” as the trial judge put it, the appellant proceeded to contact her again. In relation to the element of the offence that is challenged on appeal, namely, an objective basis for S.M.’s fear, the trial judge concluded: “Objectively [S.M.] had good reason to fear someone who would persist in contact after such warnings” [emphasis added].

[41] In my view, a properly instructed trier could reasonably convict the appellant of the s. 264 offence on the basis of the above factual record, applying the unreasonable verdict standard for judge alone trials. See: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, 216 C.C.C. (3d) 353; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, 270 C.C.C. (3d) 421; R. v. Brunelle, 2022 SCC 5, [2022] 1 S.C.R. 25, 412 C.C.C. (3d) 489.

[42] For all these reasons, I would dismiss this ground of appeal.

E. THE SENTENCE APPEAL

[43] There are two issues on the sentence appeal. First, the appellant submits that the four-month sentence imposed for breach of recognizance was demonstrably unfit. Second, he submits that the trial judge erred in dismissing his application for a constitutional exemption from SOIRA.

(i) The breach of recognizance sentence

[44] In my view, it would not be appropriate to adjust the four-month sentence for breach of recognizance and replace it with a one-month sentence, as the appellant submits. This conviction related to an email that the appellant sent to S.P. on July 27, 2021. It will be recalled that most of the charges against the appellant had been laid in October and November 2020. His first bail hearing was on December 9, 2020 and he was detained. He brought a bail review and was released on February 1, 2021. In late June 2021, trial dates were set after the JPT. In other words, the breach of recognizance in late July 2021 occurred at a point when the appellant had been before the Court for 10 months and was now awaiting a scheduled trial. He had spent four months in custody and had been released after a bail review on terms that prevented him “from using the internet to date,” as the trial judge put it. The breach of these terms involved sending an email to S.P. She was a complainant who the appellant had sent emails to in the fall of 2020 after an unsuccessful “coffee date.” She had “blocked” him on September 30, 2020.

[45] In all these circumstances, the trial judge was entitled to characterize this particular breach of a court order as “particularly egregious.” In my view, the four-month sentence was not demonstrably unfit.

(ii) The SOIRA order

[46] The trial judge made an ancillary order on sentencing requiring the appellant to register under SOIRA for twenty years. He denied the appellant’s request for a s. 24(1) Charter remedy against being required to register: see R. v. Ndhlovu, 2022 SCC 38, 419 C.C.C. (3d) 285, at para. 140. The appellant seeks to appeal these parts of the trial judge’s decision. In response, the Crown queries whether this court has jurisdiction to consider this aspect of the appeal.

[47] The question of when this court has jurisdiction to review trial judges’ decisions to impose or decline to make SOIRA registration orders is not straightforward: see e.g.; R. v. E.H., 2024 ONCA 74; R. v. S.W., 2024 ONCA 173; R. v. Clarke, 2024 ONCA 280; R. v. Ndhlovu, 2018 ABCA 260. I would add that this jurisdictional issue is only of historical importance, since on October 26, 2023, four days after the appellant was sentenced, the SOIRA registration scheme in the Criminal Code was substantially amended, and the current version of s. 490.014 now gives broad rights of appeal to both the accused and the Crown.

[48] However, in the circumstances here I need not decide whether we have jurisdiction to hear an appeal from the trial judge’s refusal to grant the appellant a constitutional exemption from registering under SOIRA. It is now settled that this court has jurisdiction to grant s. 24(1) Charter remedies to appellants who argue on appeal that a SOIRA registration order made against them by a lower court violates their Charter rights: see R. v. Rule, 2023 ONCA 31; R. v. G.H., 2023 ONCA 89; R. v. P.W., 2023 ONCA 672; R. v. N.D., 2024 ONCA 777. Whether or not we have jurisdiction to hear the appellant’s appeal from the trial judge’s refusal to grant him a s. 24(1) Charter remedy, we would still have jurisdiction to grant him this remedy ourselves, if we were persuaded that the SOIRA registration order made by the trial judge infringes his s. 7 Charter rights.

[49] Although I would find that we have jurisdiction to give the appellant the remedy he seeks, I am also not persuaded that he is entitled on the merits to be granted this remedy.

[50] Offenders sentenced before the post-Ndhlovu statutory amendments in October 2023 may claim a s. 24(1) Charter remedy exempting them from registering under SOIRA “if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012”: Ndhlovu, at para. 140. The trial judge declined to grant this remedy to the appellant because he found that the appellant presented a “significant risk to re-offend”, such that requiring him to register under SOIRA for twenty years accorded with s. 490.012’s objective.

[51] The appellant argues that the trial judge erred by giving insufficient weight to the opinion of a forensic psychiatrist, Dr. Gray, that the appellant’s risk of reoffending was only “average”. In R. v. A.S., 2023 ONCA 290, at para. 9, this court rejected a similar argument, explaining:

The appellant’s particular argument is that the sentencing judge failed to give sufficient weight to the appellant’s treatability as explained by the forensic psychiatrist, which was supported by the evidence of a psychologist. We reject this argument for three reasons. First, the weight to be given to evidence is completely within the province of the sentencing judge to whom we must defer absent an error. Second, a judge is not required to accept an expert’s opinion in whole or in part. This too is completely within the sentencing judge’s province: see Levac v. James, 2023 ONCA 73, at para. 82. Third, the sentencing judge did accept much of the forensic psychiatrist’s testimony, and also explained why he rejected the evidence on which the appellant relies.

See also R. v. V.H., 2024 ONCA 770, at paras. 10-12.

[52] The trial judge carefully considered Dr. Gray’s report, but concluded that:

[The appellant] presents a significant risk to reoffend because of the connection of his bipolar disorder to the hypersexualized impulsive conduct and his history of resistance to treatment for this disorder.

In my view, he was entitled to reach this conclusion on the evidence before him, and his factual findings are entitled to substantial appellate deference.

F. DISPOSITION

[53] I would accordingly dismiss the conviction appeal, and would grant leave to appeal sentence but dismiss the sentence appeal.

Released: March 7, 2025 “J.M.F.”

“M.A. Code J. (ad hoc)”

“I agree. Fairburn A.C.J.O.”

“I agree. J. Dawe J.A.”

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