Court File and Parties

Court File No.: CR-21-10000003-0000 Date: 2023-10-13 Ontario Superior Court of Justice

B E T W E E N:

HIS MAJESTY THE KING Monica Gharabaway for the Crown

- and -

TAL AMDURSKI Nate Jackson for Tal Amdurski

Heard: In Writing

RULING ON S. 11(b) APPLICATION #2

CORRICK J.

Overview

[1] In October 2018, Mr. Amdurski was arrested and charged with several offences, including sexual assault and human trafficking. The offences occurred between June 1 and 13, 2018, and involved a 13-year-old complainant.

[2] He was tried by me without a jury. At the conclusion of the evidence and argument on November 9, 2022, Mr. Amdurski brought a s. 11(b) application to stay the proceedings. I dismissed that application on January 11, 2023, and on March 3, 2023, I found Mr. Amdurski guilty of sexual assault, human trafficking, and sexual services offences.

[3] Following the verdict, Mr. Amdurski brought an application to stay the proceedings on the basis of lost evidence. I heard submissions on that application on June 16, 2023 and dismissed it on July 17, 2023. On July 17, Mr. Amdurski’s counsel indicated that he would be bringing a second s. 11(b) application. Counsel agreed that I would decide that application on the basis of written submissions alone. A tentative date for sentencing submissions was set for October 13, 2023.

[4] Mr. Amdurski argues that the delay of seven months and ten days between the verdict on March 3, 2023 and the anticipated sentencing date violates the five-month post-verdict ceiling set by the Ontario Court of Appeal in R. v. Charley, 2019 ONCA 726, and is presumptively unreasonable. He argues that the time required to perfect and argue meritorious post-verdict applications must not be deducted from the time that elapses between verdict and sentence because it is neither defence delay nor an exceptional circumstance. He relies on the decision of R. v. Cody in support of his submission that defence delay is deductible only when it is caused directly by the defence and flows from tactics aimed at causing delay, such as unmeritorious applications (2017 SCC 31 at para. 30).

[5] With respect, the defence reliance on the Cody decision is ill-placed. The Supreme Court of Canada in Cody dealt with pre-verdict delay. Since then, the Court has dealt specifically with post-verdict delay: R. v. K.G.K., 2020 SCC 7. At paragraph 33 of that decision, the Court wrote that the “Jordan ceilings apply from the charge to the end of the evidence and argument, and no further.”

[6] The Court of Appeal has rejected the argument that the presumptive five-month ceiling applied to both post-trial motions and sentencing: R. v. Haniffa, 2021 ONCA 326 at para. 35. The Court held that the time required for post-verdict motions unrelated to sentencing must be considered separately. The five-month presumptive ceiling applies to the sentencing process only: Haniffa, at para. 36. I do not accept Mr. Amdurski’s submission that Haniffa is wrongly decided or that it applies only to entrapment motions.

[7] In this case, the delay between the date of the verdict (March 3, 2023) and the decision on the lost evidence application (July 17, 2023) is attributable directly to the lost evidence application. Although defence counsel gave notice early in the proceedings, on March 18, 2022, that he would make a lost evidence application, the application was not perfected until May 26, 2023.

[8] On March 3, 2023, Mr. Jackson, defence counsel, indicated to the court that he required some time to perfect the application due to his busy trial schedule. The same day, he indicated in an email to the Crown that he was available to argue the application on any date between June 13-16, July 2-14, and August 14-25, 2023. It was argued on June 16, 2023. The application was scheduled to accommodate him. The date of October 13 for the hearing of sentencing submissions was also set to accommodate defence counsel’s schedule.

[9] Although the time that has elapsed between the verdict and the anticipated sentencing date is presumptively unreasonable as it exceeds five months, once the four months and 14 days attributable to the lost evidence application is deducted, the post-verdict delay is two months and 26 days.

[10] Mr. Jackson also argued that the Crown was not prepared to proceed to sentencing at any time prior to July 17, 2023 because there was an outstanding constitutional challenge to the s. 286 offences faced by Mr. Amdurski. Mr. Jackson had attempted to argue the challenge prior to the trial, but was directed by the pre-trial motions judge to argue it after the verdict.

[11] Mr. Amdurski was convicted of an offence contrary to s. 286.3. On July 17, 2023, Ms. Gharabaway stayed that offence. Mr. Amdurski was also convicted of an offence contrary to s. 286.2, and one contrary to s. 279.02. Ms. Gharabaway submits that the s. 286.2 offence is subsumed by the s. 279.02 offence and should be stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

[12] This issue added no time to the post-verdict delay.

[13] The post-verdict delay of two months and 26 days is not unreasonable. The application is dismissed.

Corrick J. Released: October 13, 2023