Siobhan Bernadette Dundon

The offender, D.N., was found guilty of two counts of sexual assault.

The Crown sought a penitentiary sentence of 6-8 years, while the defence sought a conditional sentence of two years less a day followed by probation.

The court considered the offender's significant intellectual disability as a mitigating factor, noting that incarceration would be disproportionately difficult and dangerous for him.

Despite the seriousness of the offences and the vulnerability of the victim, the court found that a departure from the typical sentencing range for sexual assault (3-5 years penitentiary) was warranted due to the offender's unique circumstances.

The court imposed a conditional sentence of two years less a day, followed by three years of probation, along with mandatory orders such as a weapons prohibition, DNA sample, SOIRA registration, and victim surcharges.

The applicant, D.N., brought an application for a stay of proceedings under section 11(b) of the Charter, alleging unreasonable delay in bringing his case to trial.

The total delay exceeded the presumptive ceiling set by R. v. Jordan.

The Crown argued that periods of defence delay and exceptional circumstances, including the COVID-19 pandemic, the National Day for Truth and Reconciliation, and unforeseen trial length due to the victim's unique testimony method, should be deducted.

The court agreed with the Crown, finding that after deducting these periods, the net delay fell below the Jordan threshold.

Consequently, the application for a stay of proceedings was dismissed.

This decision addresses a mid-trial application by the Crown to admit four out-of-court hearsay statements from two child complainants (H.B. and S.B.) in a sexual assault trial.

Due to the children's inability to provide meaningful in-court testimony, the Crown sought to admit their video-taped statements to police and H.B.'s utterances to her parents under the principled exception to the hearsay rule, requiring proof of necessity and threshold reliability.

The court found necessity was met for all statements.

For reliability, H.B.'s statements to her parents and police were deemed reliable, significantly corroborated by forensic DNA evidence.

However, S.B.'s video statement to police was found unreliable due to inconsistencies, lack of detail, and insufficient circumstantial guarantees of trustworthiness.

The Crown sought direction from the court regarding the defendant's eligibility for a preliminary inquiry for sexual offences alleged to have occurred during a period that straddled a legislative amendment increasing maximum sentences.

The court considered the interplay of the Criminal Code amendments, particularly Bill C-75, and section 11(i) of the Canadian Charter of Rights and Freedoms.

The court ruled that if there is a reasonable possibility that the defendant could be found guilty of criminal conduct that took place entirely after the sentencing amendment, they are potentially exposed to the higher maximum sentence and are therefore entitled to request a preliminary inquiry.

The defendant, Timothy Attwater, brought an application under section 11(b) of the Charter for a stay of proceedings due to unreasonable delay.

The total delay from the information being sworn to the anticipated end of trial was 1265 days, exceeding the 18-month presumptive ceiling for provincial court cases set by R. v. Jordan.

The court analyzed periods of delay attributable to defence unavailability (56 days), the COVID-19 pandemic (532 days), and the death of the defendant's former counsel (373 days).

After deducting these exceptional and defence-attributable delays, the net delay was calculated at 304 days, which is well below the Jordan ceiling.

Consequently, the application for a stay of proceedings was dismissed.