Court of Appeal for Ontario

Date: 2025-09-10

Docket: COA-24-CR-0757

Panel: Fairburn A.C.J.O., Wilson and Rahman JJ.A.

Between

His Majesty the King Respondent

and

Arvin Pherai Appellant

Counsel

Jeff Marshman, for the appellant

Akshay Aurora, for the respondent

Heard and Rendered

Heard and rendered orally: September 9, 2025

On appeal from the conviction entered by Justice Iona M. Jaffe of the Ontario Court of Justice on August 4, 2023.

Reasons for Decision

[1] This is an appeal from conviction for sexual assault and related offences. The sole ground of appeal relates to an unsuccessful application to stay the proceedings for unreasonable delay. After taking into account defence delay, the trial judge found a net delay of over 18 months. The trial judge then considered whether there were exceptional circumstances at work, of which she concluded there were two. One is not in dispute on appeal. The other, pandemic-related backlog, is in dispute.

[2] The appellant maintains that the trial judge erred by failing to articulate how delay arising from the pandemic impacted this case. The trial judge is said to have erred by speaking in generalities, including when she said, at para. 44 of her reasons:

Based on my own familiarity with this particular jurisdiction, I am confident that in this case, at least three weeks can be attributed to [the] exceptional circumstance of a backlog bringing the net delay under the presumptive ceiling.

[3] In our view, it was open to the trial judge to rely on her own familiarity with the Brampton jurisdiction, and the pandemic delay it was "experiencing" at that time. She was not required to go further and assign the around three weeks of exceptional circumstances arising from pandemic delay to a particular period of time. At a minimum, when the trial date was set in May 2022 for April 2023, the Brampton jurisdiction would have still been experiencing the effects of the pandemic delay. This meant that if the delay resulting from the pandemic had not existed, earlier trial dates would have been available. In our view, the trial judge was not under an obligation to spell this out in any more detail than is reflected in her reasons.

[4] The appeal is dismissed.

"Fairburn A.C.J.O."

"D.A. Wilson J.A."

"M. Rahman J.A."

Publication Ban

[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.