



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. St. Amand, 2017 ONCA 913

DATE: 20171127

DOCKET: C62427

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samuel St. Amand

Appellant

Michael F.W. Bennett, for the appellant

Michelle Campbell, for the respondent

Heard: September 29, 2017

On appeal from the conviction entered on March 31, 2014
    and the sentence imposed on June 1, 2016 by Justice John Kukurin of the Ontario
    Court of Justice.

By the Court:

Introduction

[1]

On April 17, 2013 the appellant, Samuel St. Amand, was arrested and
    charged with one count each of making available and possession of child
    pornography, contrary to ss. 163.1(3) and 163.1(4) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

During a lawful search of the appellants residence and computer, the
    police discovered child pornography on the appellants computer. Subsequent
    forensic examination of the computer disclosed more than 3,900 unique images.  Most
    of the stored images were not immediately accessible, but 750 of them were.  Forensic
    examination also disclosed that there had been active sharing of the images
    through an electronic file sharing program.

[3]

While the search of his home and computer was in progress, the appellant
    made an inculpatory statement to the police in which he acknowledged responsibility
    for the images.  It is accepted that the statement was voluntary and not
    obtained in breach of the appellants constitutional rights.

[4]

On March 31, 2014 the appellant pleaded guilty to making available child
    pornography.  His sentencing hearing began shortly after the entry of his
    guilty plea and continued thereafter on various dates until sentence was
    eventually imposed on June 1, 2016.

[5]

The appellant testified at the sentencing hearing. He admitted his guilt
    on the making available pornography charge, but maintained that all his actions
    were accidental.  He said that he routinely downloaded various files, without
    knowing their contents, and then deleted the files he did not want.  He testified
    the only reason the child pornographic images were readily accessible on his
    computer on the day of his arrest was because he just didnt get around to
    deleting [them].

[6]

The sentencing judge rejected the appellants account.  He found the
    appellant was aware of how the file sharing program operated.  It followed that
    the appellant had knowingly acquired and shared images through the program. He
    sentenced the appellant to the mandatory minimum sentence of 12 months
    imprisonment set out under s. 163.1(3) of the
Criminal Code
for the
    charged offence of making available child pornography, less credit at the rate
    of 1.5:1 for pre-sentence custody.  He also imposed a 15-month probation order
    and various ancillary orders.  The Crown withdrew the possession of pornography
    charge following sentencing.

[7]

The appellant appeals from his conviction, seeks leave to appeal his
    sentence and, if leave be granted, seeks a reduced sentence of six months imprisonment,
    less time served.

Issues and Parties Positions

[8]

The appellant does not contest his guilty plea. However, he contends that
    the sentencing judge erred by failing to stay the proceedings against him in
    response to three distinct stay applications brought by the defense during the
    course of the sentencing hearing and, further, by failing to properly address the
    appellants Notice of Constitutional Question, also filed during the sentencing
    hearing.

[9]

The appellant raises three specific issues. First, he argues that the
    sentencing judge erred by dismissing his applications for a stay of proceedings
    based on  abuse of process, in breach of his constitutionally protected rights
    under s. 7 of the
Canadian Charter of Rights and Freedoms
.

[10]

Next, and relatedly, the appellant submits that the sentencing judge
    erred in his treatment of the appellants Notice of Constitutional Question, in
    which the appellant challenged the propriety of the Crowns decision to proceed
    in this case by indictment, rather than summarily.

[11]

Finally, the appellant submits that the sentencing judge erred by
    dismissing his application for a stay of proceedings based on unreasonable
    delay, in breach of his s. 11(b)
Charter
right to be tried within a
    reasonable time.

[12]

The Crown submits that there was no abuse of process in this case. 
    Further, the Crown says, the appellants Notice of Constitutional Question did
    not actually attack the constitutional validity of any
Criminal Code
provision and the sentencing judge was entitled to find, as he did, that the
    appellants constitutional challenge failed because it essentially repeated the
    same arguments as those rejected on the appellants first abuse of process application.

[13]

The Crown readily acknowledges the delay in this case was substantial. 
    However, it argues the delay was reasonable pursuant to the principles
    articulated by the Supreme Court of Canada in
R. v. Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631, in particular under  the  transitional exceptional circumstance for
    the application of s. 11(b) of the
Charter
Analysis
(1)

Abuse of Process Applications
[14]

We turn first to the appellants abuse of process claims.
(a)

First Abuse of Process Application
[15]

During his sentencing hearing, the appellant twice sought a stay of
    proceedings based on abuse of process allegedly arising from prosecutorial
    misconduct.  His first abuse of process application, dated April 22, 2015,
[1]
focused primarily on the Crowns election to proceed by indictment in this
    case, rather than summarily.
[16]

This election was important because, at the time, the charge of making
    available child pornography was a hybrid offence.  Under s. 163.1(3) of the
Criminal
    Code
, a prosecution by indictment for a charge of making available child
    pornography triggered a mandatory minimum sentence of 12 months imprisonment. 
    In contrast, a six-month mandatory minimum sentence applied on summary conviction
    for the same charge.
[17]

The appellant claimed that, by electing to proceed by indictment rather
    than summarily, the Crown exercised its discretion in a manner that result[ed]
    in a grossly disproportionate sentence.  He relied on three aspects of the
    Crowns conduct in support of this claim.
[18]

First, he argued that, prior to making its election, the Crown failed to
    evaluate the nature and seriousness of the alleged offence by failing to review
    and organize the images in accordance with a classification system called the
    COPINE scale.
[19]

Second, the appellant challenged the Crowns failure to reconsider its
    original election after receiving, both from police forensic experts and the
    defence, post-charge information favourable to the defence.
[20]

Third, the appellant attacked the Crowns change of position on
    sentencing.  Initially, the Crown took the position that a fit sentence was 18
    months imprisonment (six months more than the statutory mandatory minimum), or
    15 months on a joint sentencing submission.  In mid-December 2014, the Crown
    offered a revised position on sentencing  12 months imprisonment, plus three years
    probation and various ancillary orders, on a joint submission.  This offer was
    time limited and was not accepted by the defence.  Finally, in April 2015, the
    Crown informed the defence that it would seek a 12-month sentence of
    imprisonment, plus probation for 18 months and various ancillary orders.  This
    was the sentence ultimately sought by the Crown at the sentencing hearing.
[21]

The appellant maintained that these actions by the Crown, in
    combination, were improper tactics that exposed him to greater potential penal
    consequences than were warranted in the circumstances; that sought to fetter
    the sentencing judges discretion regarding the available range of sentence;
    and that were designed to pressure him into agreeing to a sentence of 12 months
    imprisonment.
[22]

The sentencing judge, for clear and cogent reasons, dismissed the
    appellants first abuse of process application. He began his analysis by
    recognizing the wide prosecutorial discretion vested by Parliament in the Crown
    regarding the manner of proceeding with prosecutions for hybrid offences, like
    the one at issue in this case.  As he put it, at para. 50 of his ruling,
    prosecutors throughout this province make such decisions routinely on a daily
    basis.
[23]

He next set out the grounds advanced by the appellant in support of his
    application, and then turned to the governing principles for an abuse of
    process claim relating to the alleged improper exercise of prosecutorial
    discretion.  Citing the Supreme Court of Canadas leading decision in
R. v.
    Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167 and this courts decision in
R.
    v. Delchev
, 2015 ONCA 381, 126 O.R. (3d) 267, the sentencing judge noted,
    correctly, that the appellant was obliged to establish a proper evidentiary
    foundation for his abuse of process claim before it could proceed:
Anderson
,
    at paras. 52-53. As this court explained in
Delchev
, at para. 49, only
    if an accused meets this threshold evidentiary burden will the court inquire
    into the reasons behind the exercise of prosecutorial discretion.  This
    pre-condition for judicial intervention respects the presumption that
    prosecutorial discretion is exercised in good faith:
Anderson
, at
    para. 55.
[24]

The sentencing judge concluded that the appellant had failed to satisfy
    this threshold evidentiary requirement.  He held, at para. 69:
Nothing in the evidence in the sentencing hearing persuades me
    that, in exercising its discretion, the Crowns decision to proceed by
    indictment, both when it was first made, and for the duration it has continued
    in effect, qualifies as egregious conduct. The word egregious carries a
    connotation of scandalous, shocking and outrageous. The Crowns continuing
    election comes nowhere close to this. It does not compromise the integrity of
    the justice system.  Nor does it, in my view, compromise the fairness of the
    sentencing (trial) process for this accused.  I do not see bad faith in this
    exercise of the Crowns prosecutorial discretion.
[25]

The sentencing judge also dealt head-on with the appellants assertions
    that the Crown, prior to electing whether to proceed by indictment, was obliged
    to examine and categorize the images found on the appellants computer in
    accordance with the COPINE scale and, thereafter, to re-examine its election
    decision in light of subsequently obtained information about the appellants
    circumstances and those of the offence.
[26]

With respect to the first assertion  the urged compulsory use of the
    COPINE scale  the sentencing judge recognized that the COPINE scale is not
    universally used or required in the investigation of child pornography
    offences.  He also recognized that the relative seriousness of the images 
    something that the COPINE scale purports to measure  could be addressed during
    sentencing.  He put it this way, at para. 73: Whether or not the COPINE scale
    is applied and in what manner is a decision that applies to the imposition of
    sentence, not to the exercise of prosecutorial discretion.
[27]

The sentencing judge also rejected the appellants claim the Crown was
    required to have regard to the particular attributes of the accused in
    exercising its discretion. To impose such a requirement on the Crown, in his
    view, would wrongly equate the duties of a prosecutor with those of a
    sentencing judge, contrary to the teachings of
Anderson.
Imposition
    of a proportionate sentence on an accused is a duty the law imposes on judges,
    not prosecutors.  Parliament, he emphasized, has created a discretionary framework
    under the criminal law that affords the Crown discretion to choose how to
    proceed with the prosecution of a hybrid offence. The Crowns resulting
    election reflects the exercise of prosecutorial discretion.
[28]

Moreover, and in any event, the sentencing judge found that, in fact,
    the Crown had not ignored or disregarded post-charge information about the
    appellants circumstances or those of the offence. To the contrary, it had
    considered and challenged certain of that information, including a
    psychological assessment of the appellant furnished by the defence.  The Crown,
    he noted, was not obliged to accept this assessment at face value or to
    attenuate its election decision based on a defence psychological risk
    assessment of the appellant.
[29]

The sentencing judge summarized his conclusions at para. 74 of his
    reasons, in this fashion:
In summary, the amended application (dated April 22, 2015) is
    dismissed. The accused has not shown an abuse of process has taken place as a
    result of the Crowns election to proceed by indictment, or by its decision in
    maintaining this position.  He has not shown bad faith, or improper motive. The
    decisions of the Crown are not so rare or exceptional as to require an
    explanation.  The accused has not demonstrated that his
Charter
right
    to liberty has been infringed by the decisions made by the Crown.  Accordingly,
    he is not entitled to any remedy under s. 24(1) of the
Charter
on the
    basis of this amended application.
[30]

We see no basis for appellate interference with the sentencing judges ruling
    on this application.  To succeed on this application, the appellant was obliged
    to demonstrate Crown conduct that was egregious and seriously compromise[d]
    trial fairness and/or the integrity of the justice system:
Anderson
,
    at para. 50.  He failed to establish any Crown conduct that met this exacting
    standard.  Nor, as the sentencing judge recognized, can the Crowns decision to
    proceed by indictment or its positions on sentence properly be characterized as
    rare and exceptional exercises of prosecutorial discretion.  Decisions of this kind
    by the Crown are commonplace in our criminal justice system.
[31]

The sentencing judges reasons confirm he recognized the controlling
    legal principles for an abuse of process claim of this nature and, having considered
    the evidence bearing on that claim, properly applied those principles.  His
    holding that the appellant failed to establish an evidentiary foundation for his
    first abuse of process claim is amply supported by the record.
(b)

Second Abuse of Process Application
[32]

We reach a similar conclusion regarding the sentencing judges ruling on
    the appellants second abuse of process application.
[33]

The legal basis for this fresh abuse of process application, dated November
    30, 2015, is not entirely clear.  The application appears to have rested on the
    contention that the Crown was required to give notice to the defence of its
    intention to cross-examine the appellant and other defence witnesses at the
    sentencing hearing, and that the Crowns failure to do so occasioned prejudice
    to the appellant.
[34]

In support of this contention, the appellant argued that it was an abuse
    of process for the Crown to cross-examine defence witnesses, including the
    appellant, after the Crown had revised its original position on sentencing and
    decided to seek the 12-month mandatory minimum under s. 163.1(3) of the
Criminal
    Code
.  According to the appellant, this change in position rendered any
    need to challenge the defence evidence moot.  As a result, the appellant
    claimed, the Crowns continued pursuit of that challenge was intended merely to
    vindicate its original election to proceed by indictment, a decision already in
    issue on the first abuse of process application.
[35]

In our opinion, this claim is clearly misconceived.  Indeed, it may fairly
    be described as frivolous.  As the sentencing judge observed, the Crown was
    under no legal obligation to provide notice to the defence of its intention to
    cross-examine witnesses at the sentencing hearing.  Further, absent evidence of
    bad faith or improper motives, which were not demonstrated here, the Crown is
    not obliged to provide reasons for its decisions in the course of a
    prosecution:
Anderson
, at para. 55.
[36]

Moreover, on the sentencing judges findings, the appellant failed to
    adduce any evidence of prejudice arising from the Crowns decision to
    cross-examine defence witnesses at the sentencing hearing.  Nor, before this
    court, does the appellant point to evidence of such prejudice.
[37]

The sentencing judge expressly rejected the appellants assertion that
    the Crowns decision to cross-examine witnesses at the sentencing hearing was
    motivated by a desire to justify its impugned indictable election, or its
    original decision to seek a sentence of 18 months imprisonment.  He was
    entitled to do so.
[38]

Apart altogether from the application of the mandatory minimum sentence,
    there were legitimate reasons for the Crown to cross-examine the defence
    witnesses.  First, the mandatory minimum aside, there were other sentencing
    considerations in play.  The Crown, for instance, was obliged to support the
    duration and terms of the probation order it was seeking.  Second, as the
    appellant conceded at the appeal hearing, at the time of the
    cross-examinations, the appellant had already indicated his intention to launch
    a constitutional challenge.  The Crown was entitled to seek to establish an
    evidentiary record that was responsive to that challenge.
[39]

Perhaps more importantly, as this court accepted in
R. v. Khalid
,
    2010 ONCA 861, 183 O.R. (3d) 600, at para. 2, leave to appeal refused, [2011]
    S.C.C.A. No. 322, evidence regarding an accuseds state of mind and his degree
    of moral blameworthiness is properly part of a sentencing hearing:
R. v.
    Gardiner
, [1982] 2 S.C.R. 368, 140 D.L.R. (3d) 612.  The Crown is not
    compelled to accept defence evidence material to sentencing.  Nor is it
    required to proceed to sentencing on a record of defence counsels choosing. A
    sentencing judge is entitled to a full evidentiary record in making sentencing
    decisions, not the record preferred by the defence.
[40]

This was particularly true in this case, where the appellant was
    prepared to admit only to wilful blindness in relation to the charges, that is,
    to a reduced level of moral culpability. Having heard the appellants testimony,
    the sentencing judge rejected his claim that he was wilfully blind to the receipt
    and sharing of the child pornographic images found on his computer.  To the
    contrary, the sentencing judge concluded that the appellant knew what he was
    doing.
[41]

For these reasons, we reject the appellants challenge to the sentencing
    judges dismissal of his second abuse of process application.
(2)

Notice of Constitutional Question
[42]

The constitutional question proposed by the appellant is not clearly
    stated, either in his June 5, 2015 Notice of Constitutional Question or in his
    factum on appeal.  While the appellants Notice urges that the statutory
    mandatory minimum should be struck down, it does not challenge any specific
Criminal
    Code
provision.  Further, the material facts stated in the Notice echo
    the arguments advanced by the appellant in support of his unsuccessful first
    abuse of process claim.
[43]

The appellant posited no clear constitutional question, separate from
    his s. 7
Charter
arguments on his first abuse of process application,
    before the sentencing judge.  When questioned by the sentencing judge as to
    whether he was attacking the constitutional validity of s. 163.1(3) of the
Criminal
    Code
, the responses of the appellants counsel were equivocal.
[44]

Nonetheless, contrary to the appellants submission, the sentencing
    judge did address, and resolve, the appellants Notice of Constitutional
    Question.  He dismissed the appellants constitutional challenge  such as it
    was  for essentially the same reasons as those underpinning his dismissal of
    the first abuse of process application.  He did not err in doing so.
[45]

To the extent the appellant may be taken as having argued that the
    sentencing judge erred by declining to hold that the Crown must invariably
    justify its election with respect to the prosecution of a hybrid offence
    attracting different mandatory minimums, this argument must also fail.  Simply
    put, it is not a constitutional question.
[46]

Notably, the appellant concedes on appeal that he is not challenging the
    constitutional validity of any mandatory minimum sentencing provision of the
Criminal
    Code
.  In his factum, the appellant states:
The Appellant has not challenged the constitutionality of
    mandatory minimums.  His challenge is to the rule of law preventing a
    sentencing judge from scrutinizing the Crowns election as to which of two
    mandatory minimums a judge is bound to impose.
[47]

On this ground, as well, no constitutional question arises.
(3)

Section 11(b) Application
[48]

As we have said, on April 10, 2015 the appellant brought an application
    for a stay of proceedings based on an alleged breach of his s. 11(b)
Charter
right to be tried within a reasonable time.
[49]

To recap, the appellant was charged on April 17, 2013. On March 31, 2014
    he entered a guilty plea to the charge of making available child pornography,
    and his sentencing hearing began shortly thereafter. Sentence was eventually
    imposed on June 1, 2016.  Thus, the total delay was approximately 38 months.
(a)      Sentencing Judges Ruling
[50]

At the time of the appellants s. 11(b) stay application, the framework
    set out by the Supreme Court of Canada in
R. v. Morin
, [1992] 1 S.C.R.
    771, including the guidelines for how much institutional delay is generally
    tolerable, governed the application of s. 11(b).  Applying that framework, the
    sentencing judge found that the delay in this case was not unreasonable and dismissed
    the application.
[51]

Under
Morin
, the determination whether a s. 11(b)
Charter
breach has occurred requires the balancing of four factors: i) the length of
    the delay; ii) defence waiver; iii) the reasons for the delay; and iv)
    prejudice to the accuseds s. 7
Charter
interests in liberty, security
    of the person, and a fair trial:
Jordan
, at para. 30.  Institutional
    delay is evaluated against a set of guidelines developed by the court in
Morin
 eight to ten months as a guide for institutional delay in the provincial
    court, and an additional six to eight months as a guide for institutional delay
    in the superior court after an accuseds committal for trial:
Jordan
, at
    para. 52.
[52]

As required under
Morin
, the sentencing judge considered each
    of these factors in determining the reasonableness of the total delay in this
    case.  In doing so, he confined his analysis to the period from April 2013,
    when the appellant was charged, to September 2015, when his s. 11(b)
    application was argued  a total of 29 months.
[53]

In examining the reasons for this delay, the sentencing judge attributed
    17.5 months to neutral or inherent delay, four months delay to the Crown, and
    seven and one-half months delay to the defence.  His breakdown, at paras. 27-37,
    was as follows:
·

April 17, 2013 to October 17, 2013 (6
    months)
: neutral intake delay, involving such matters as the retainer of
    counsel, bail proceedings, receipt of Crown disclosure, and the like;
·

October 17, 2013 to December 19, 2013 (2
    months)
: neutral inherent delay, involving a defence request for a
    December 2013 date for plea and disposition. On December 16, 2013 the defence
    sought an adjournment of the scheduled plea date.  By then, the parties had
    agreed that a sentencing hearing would be necessary;
·

December 19, 2013 to March 31, 2014 (3.5
    months)
: neutral inherent delay, arising from both Crown and defence
    actions. Both parties agreed to the cancellation of the original December 2013
    plea date, to the need for a sentencing hearing and to a new plea date of March
    31, 2014.  As well, the 2013 holiday season intervened;
·

March 31, 2014 (one day)
: neutral inherent
    delay, involving the hearing of evidence and a finding of guilty on the plea
    entered by the appellant;
·

March 31, 2014 to November 12, 2014 (7.5
    months)
:

defence

delay. The Crown had completed its
    evidence at the sentencing hearing, the defence was not prepared to set a
    continuation date until a pre-sentence report was received, and a defence
    expert was unavailable to testify until November 2014;
·

November 12, 2014 to December 19, 2014 (1
    month)
: neutral inherent delay. The hearing continued on November 12,
    2014 but, again, was not completed. The defence needed time to consider and, if
    necessary, file a
Charter
application, and the Crown required time to
    move for a disclosure order relating to the work of a defence expert;
·

December 19, 2014 to April 23, 2015 (4
    months)
: institutional delay. A continuation date for the hearing could
    not be set prior to April 23, 2015 due to the unavailability of the assigned
    judge; and
·

April 23, 2015 to September 14, 2015 (5
    months)
: neutral inherent delay. The evidence at the hearing was
    completed at the end of May 2015, but a continuation date acceptable to both
    counsel was not available until September 2015.
(b)
Jordan
Framework
(i)

Presumptive unreasonable delay
[54]

The Supreme Court of Canada released its decision in
Jordan
approximately
    one month after the appellant was sentenced.
Jordan
establishes a
    materially new framework for applying s. 11(b), holding that there are presumptive
    ceilings beyond which delay, from the date of the charge to the actual or
    anticipated end of an accuseds trial, is presumed to be unreasonable.
[55]

Under
Jordan
, the presumptive ceiling is 18 months for cases
    tried in the provincial court, like this one, and 30 months for cases tried in the
    superior court.  Delay caused or waived by the defence does not count towards
    the presumptive ceiling:
Jordan
, at paras. 49, 60-62, 66, and 105.
[56]

If, in any case, the applicable presumptive ceiling is exceeded, the
    Crown bears the burden of rebutting the presumption of unreasonableness by
    establishing the presence of exceptional circumstances.  If the Crown fails to
    do so, the delay is unreasonable and a stay of proceedings will follow.  If the
    delay in question falls below the presumptive ceiling, the defence bears the
    burden to show that the delay is unreasonable:
Jordan
, at paras.
    47-48.
(ii)

Transitional cases
[57]

Under
Jordan
, where the reasonableness of delay in a case
    commenced under the pre-
Jordan
s. 11(b) regime is determined post-
Jordan
,
    the s. 11(b) analysis involves three steps.
[58]

First, the total delay must be calculated for comparison to the applicable
    presumptive ceiling.  The delay attributable to the defence is then subtracted
    from the total delay, to yield a net delay:
Jordan
, at paras. 60 and
    66.
[59]

Second, if the net delay (total delay minus defence delay) exceeds the applicable
    presumptive ceiling, the Crown may rebut the resulting presumption of
    unreasonableness by demonstrating that the delay is reasonable because of
    exceptional circumstances:
Jordan
, at para. 68.
[2]

[60]

Third, in cases where the charges pre-date
Jordan
, the
    presumption of unreasonableness may nevertheless be rebutted where the Crown
    demonstrates that a transitional exceptional circumstance justifies the delay. That
    is, that the time the case has taken is justified based on the parties
    reasonable reliance on the law as it previously existed:
Jordan
, at
    paras. 95-96;
R. v.

Picard
, 2017 ONCA 692, at para. 26;
R.
    v. Cody
, [2017] SCC 31, 411 D.L.R. (4th) 619, at para. 25.  As a
    result, where, as here, the entirety of the proceedings pre-date
Jordan
and the presumptive ceiling is exceeded, the Crown may rebut the presumption of
    unreasonableness if it demonstrates that the delay was reasonable in light of
    the parties reasonable reliance on
Morin
.
(c)

Application of
Jordan

[61]

The sentencing judge did not have the benefit of the Supreme Court of
    Canadas decision in
Jordan
. It therefore falls to this court to
    assess the reasonableness of the delay in this case in light of
Jordan
,
    including its directions for the application of s. 11(b) in respect of cases
    that were already in the system when
Jordan
was released.
[62]

This approach is subject to one significant qualification.  Most,
    although not all, the delay in this case arose in connection with the
    appellants sentencing hearing, after he had pleaded guilty and had been
    convicted of making available child pornography. It is clear that s. 11(b)
    applies to sentencing proceedings:
R. v. MacDougall
, [1998] 3 S.C.R.
    45, at para. 27.  It is not clear, however, that the presumptive ceilings
    established in
Jordan
similarly apply to such proceedings.  The
    majority of the Supreme Court in
Jordan
expressly declined to determine
    this issue, stating, at footnote 2:
The issue of delay in sentencing, however, is not before us,
    and we make no comment about how this [presumptive] ceiling should apply to s.
    11(b) applications brought after a conviction is entered, or whether additional
    time should be added to the ceiling in such cases.
[63]

Counsel in this case did not raise any issue about how the
Jordan
presumptive ceilings for delay apply after a conviction has been entered. 
    Accordingly, this important question must await determination in another case, where
    the court has the benefit of a full record and argument on the issue.  We
    therefore approach our evaluation of the reasonableness of the delay in this
    case on the assumption, without deciding, that the current
Jordan
presumptive
    ceilings for delay are implicated.
(i)       Total delay and defence delay
[64]

The Crown accepts that the total delay here was approximately 38 months
    from the date of the appellants charges in April 2013 until sentence was imposed
    in June 2016.  We agree.
[65]

While this total delay exceeds the applicable
Jordan
guideline
    by 20 months, it is the net delay that is to be used to measure whether the
    delay is presumptively unreasonable.  It remains to determine how much of the
    38-month delay, if any, is attributable to defence delay so that the net delay
    can be calculated.
[66]

Jordan
confirms that defence delay has two components: delay
    waived by the defence and delay caused solely or directly by defence conduct:
Jordan
,
    at paras. 61 and 63;
Cody
, at para. 26.  There is no suggestion here
    of any defence-waived delay.  Consequently, the focus is on the second
    component of defence delay  delay attributable to defence conduct.
[67]

The Crown accepts the sentencing judges attribution of seven and
    one-half months delay to the defence for the period March 31, 2014 to November
    12, 2014.  The date of March 31, 2014 had been set as the agreed date for the
    sentencing hearing and the Crown led the entirety of its case on that day. 
    However, the defence sought an adjournment in order to obtain a pre-sentence
    report, to consider what defence evidence to call, and to arrange for the
    attendance of a proposed defence expert, Dr. Valliant, a registered
    psychologist.  This witness proved to be unavailable prior to November 12,
    2014.  In short, the defence was unprepared on March 31 and had not even
    determined when Dr. Valliant would be available to testify.  In these
    circumstances, we agree that this seven and one-half months period is properly
    regarded as defence delay.
[68]

However, the Crown submits the last six and one-half months before the
    appellant was finally sentenced, an interval not considered by the sentencing
    judge because it consists of delay after argument of the s. 11(b) application,
    is also defence delay.  On this approach, the total defence delay is 14 months,
    yielding a net delay under the
Jordan
framework of about 24 months.
[69]

The Crown argues the additional six and one-half months delay was caused
    exclusively by the appellants unmeritorious and belated second abuse of
    process application, described above.  The Crown maintains that this
    application derailed the sentencing judges deliberations, because it had to be
    heard and resolved in order to know whether a sentence should be imposed.
[70]

We agree with the latter submissions.
[71]

We have already concluded that the appellants second abuse of process
    application was misconceived and frivolous.  It was therefore illegitimate
    defence conduct within the meaning of that term as contemplated in
Jordan
and
Cody
.
Jordan
holds that deliberate and calculated
    defence tactics aimed at causing delay, including frivolous applications and
    requests, are straightforward examples of defence delay:
Jordan
, at
    para. 63;
Cody
, at paras. 30-35.
[72]

The second abuse of process application was also late.  Dated November 30,
    2015 (more than two years and seven months after the charges), it complained of
    Crown conduct that occurred in the spring of 2015, when the Crown cross-examined
    defence witnesses at the sentencing hearing.
[73]

Moreover, this belated application did indeed derail deliberations. The
    sentencing judges decisions on the s. 11(b) stay application and the
    appellants first abuse of process application were scheduled for release on
    December 7, 2015 but the second application intervened.  It was not until
    January 5, 2016 that this new application could be argued.  To expedite matters
    and avoid yet another hearing date, the sentencing judge ordered that
    sentencing submissions should be filed in writing.  Rulings on the defence
    applications and reasons for sentence were released on May 17, 2016 and
    sentence was imposed on June 1, 2016.
[74]

Thus, the timing of the second abuse of process application directly
    caused delay in the progress of the sentencing hearing.  As the Crown argues,
    it also strongly suggests that the defence was indifferent towards the delay it
    was causing.  But for this application, it might reasonably have been expected
    that the sentencing judges rulings on the first abuse of process and s. 11(b)
    stay applications would have been available on the set date of December 7, 2015,
    leaving only the sentencing matter to be resolved.  As a result, the sentencing
    hearing may well have been concluded on January 5, 2016  a day used for
    submissions on the second abuse of process application  or shortly thereafter.
[75]

Jordan
holds that defence actions legitimately taken to
    respond to the charges do not constitute defence delay and should not be
    deducted:
Jordan
, at paras. 65-66; see also
Cody
, at para.
    29.  In our view, in a post-
Jordan
case, a frivolous and misconceived
    defence application or motion is unlikely to qualify as a legitimate response
    to charges against an accused, thus falling within the ambit of defence delay
    for the purposes of s. 11(b).
Jordan
essentially says so.
[76]

Here, however, the appellants sentencing hearing was conducted at a
    time when, under the operative s. 11(b)
Morin
framework, tactical
    defence decisions causing or contributing to delay did not have the same
    prominence as they now do, under the
Jordan
regime.
[77]

Jordan
makes clear that the new s. 11(b) framework is to be
    applied contextually and flexibly to pre-
Jordan
cases.  As the
Jordan
court held, at paras. 94 and 96: it is not fair to strictly judge participants
    in the criminal justice system against standards of which they had no notice.
[78]

For this reason, in this transitional case, fairness requires that we
    decline to treat the additional six and one-half months immediately preceding
    the date of the appellants sentencing as defence delay.
[79]

There were, however, other periods of defence delay not included in the
    sentencing judges or the Crowns calculations.
Jordan
recognizes that
    defence delay may also result if the court and the Crown are ready to proceed,
    but the defence is not. The ensuing delay resulting from that unavailability is
    to be attributed to the defence:
Jordan
, at para. 64;
Cody
,
    at para. 30.
[80]

As we will elaborate at paras. 97 and 98 of these reasons, the defence in
    this case declined available dates for the continuation of the sentencing
    hearing due to the unavailability of trial defence counsel, leading to
    approximately four weeks of additional delay.  This delay must be added to the
    sentencing judges defence delay calculation, thereby resulting in total defence
    delay of approximately eight and one-half months.  Deduction of this defence
    delay from the total delay of approximately 38 months yields a net delay of 29
    and one-half months.  This exceeds the ceiling for cases tried in the
    provincial court and, hence, is presumptively unreasonable under the
Jordan
principles, subject to consideration of discrete events  one category of
    exceptional circumstances under
Jordan
, to which we now turn.
(ii)      Exceptional circumstances
[81]

Exceptional circumstances that may rebut the presumption of unreasonable
    delay are those that lie outside the Crowns control because: i) they are
    reasonably unforeseen or reasonably unavoidable; and ii) they cannot reasonably
    be remedied by the Crown:
Jordan
, at para. 69;
Cody
, at para.
    45.
[82]

Jordan
holds that, while the list of circumstances that may
    qualify as exceptional for these purposes is not closed, in general,
    exceptional circumstances fall under two categories: discrete events and
    particularly complex cases:
Jordan
, at para. 71. Where the delay is
    reasonably attributable to a discrete event,
for
    instance, to
a participants unexpected illness or other unforeseen
    medical emergency, the delay attributable to that event must be subtracted from
    the total delay.  If the exceptional circumstance arises from the complexity of
    the case, the delay is reasonable and no further analysis is required:
Jordan
,
    at paras. 75 and 80.
[83]

The Crown does not rely in this case on any discrete event as an exceptional
    circumstance capable of rebutting the presumption of unreasonable delay.  Nor
    did we understand it to argue that this case, viewed as a whole, was
    sufficiently complex as to justify the overall delay.  These factors,
    therefore, need not be considered further.
[84]

That said, we note that complexity relating to the offence is
    nonetheless relevant in considering the reasons for the delay.  We will return
    to this issue later in these reasons.
(iii)

Transitional exceptional circumstance
[85]

Given that the Crown is not relying on the type of exceptional
    circumstances described above to rebut the presumption of unreasonableness, the
    s. 11(b) analysis in this case turns on whether the Crown has established that
    the net delay is justified based on the third form of exceptional circumstance
    recognized in
Jordan
, namely, the parties reasonable reliance on the
    law as it previously existed:
Jordan
, at para. 96.
[86]

Jordan
emphasizes that this transitional exceptional
    circumstance requires a contextual assessment, sensitive to the manner in
    which the previous framework was applied, as well as the fact that the
    parties behaviour cannot be judged strictly against a standard of which they
    had no notice:
Jordan
, at para. 96.  Our consideration of the
    sentencing judges s. 11(b) analysis under the former
Morin
framework
    proceeds on this basis.
[87]

First, the intake period of delay.  Recall that the sentencing judge
    identified 11.5 months (April 17, 2013 to March 31, 2014) as neutral inherent
    delay.   In doing so, he addressed the complexity of a child pornography
    prosecution, holding, at para. 38:
That the initial intake period was longer than might have been
    expected is explained, in part, by the nature of the charge and the fact that
    police analysis of the computer files in the accuseds hard drive is a tedious,
    time consuming process, and it takes place, for the most part,
after
the charge is laid. As a result, Crown disclosure
    is delayed, as are Crown-defence discussions and negotiations. There is some
    appellate recognition of the lengthier post-charge investigation process in
    child pornography cases. [Emphasis in original; Citation omitted.]
[88]

This was a proper and necessary consideration under the
Morin
framework.
     There can be no dispute that much of the time consuming forensic investigation
    in a child pornography case occurs after the charge, leading to a lengthier
    intake period:
R. v. Stilwell
, 2014 ONCA 563, 324 O.A.C. 72.
[89]

Moreover, much of the intake delay here was triggered by the inability
    of the parties to agree on a sentencing position or to achieve an agreed
    statement of facts.  When the Crown ultimately chose to present oral evidence
    at a sentencing hearing, the parties consented to an adjournment to March 31,
    2014 to prepare for and accommodate that hearing.  The parties clearly were not
    ready to proceed until March 31, 2014.
[90]

Accordingly, we see no basis for interference with the sentencing
    judges decision to treat 11.5 months as inherent delay.
[91]

As we have already discussed, the next material period of delay, March
    31, 2014 to November 12, 2014, is properly regarded as 7.5 months of defence
    delay, attributable to lack of preparation by the defence.
[92]

On November 12, 2014, the day the sentencing hearing next continued,
    matters were not concluded.  The next hearing date was set for December 19,
    2014.  The appellant required an adjournment to decide whether to launch a
Charter
application.  For its part, the Crown sought further production regarding the
    anticipated evidence of the defence psychologist, Dr. Valliant.  The sentencing
    judge considered this one month delay to be neutral inherent delay.  We agree. 
    Once again, the parties were not ready to proceed, given the new issues that
    had arisen.
[93]

The following four months or so, from December 19, 2014 to April 23,
    2015, was institutional delay under the
Morin
regime.  The matter did
    not conclude on December 19, 2014 and needed to be continued.  The sentencing
    judge was unavailable, however, until after April 15, 2015 leading to a
    continuation date about one week later.
[94]

The sentencing hearing was still not completed on April 23, 2015.  The
    evidentiary phase of the hearing ultimately concluded at the end of May 2015. 
    Yet the appellants s. 11(b) stay application was not ready to be heard until
    September 4, 2015.
[3]
This day proved to be insufficient and a further date of November 2, 2015 was
    assigned.  Submissions concluded on that date.
[95]

Of this entire period of delay, the sentencing judge described about five
    months as neutral inherent delay (April 23, 2015 to September 14, 2015) because
    much of it was caused by the unavailability of counsel over the summer.  As we
    have explained, he did not consider the delay after mid-September 2015.  The delay
    between April 23, 2015 and November 2, 2015 was approximately six and one-half
    months.
[96]

On appeal, the Crown concedes that not all this delay was neutral.  Much
    of it was caused by Crown unavailability.  The Crown accepts responsibility for
    delays between: i) April 23, 2015 to May 26, 2015; ii) May 28, 2015 to
    September 4, 2015; and iii) September 10, 2015 to November 2, 2015.  Crown
    counsel was unavailable for dates offered when the court and defence counsel
    could proceed.  The Crown identifies only 15 days between April 23, 2015 to
    September 10, 2015 as inherent delay, attributable to hearing dates and agreed adjournments.
[97]

In our view, this overstates the delay attributable to the Crown. Dates
    available to the court in August 2015 were not utilized because defence counsel
    was unavailable.  Had he been, the hearing could have continued several weeks
    before the September 4, 2015 date.
[98]

While we accept the inherent delay of 15 days identified by the Crown, we
    also conclude that additional delay of approximately four weeks arose from
    defence counsels unavailability.  The Crown delay under a
Morin
analysis for the period April 23, 2015 to November 2, 2015 therefore approaches
    four and one-half months, rather than approximately six months, as suggested by
    the Crown.
[99]

The Crown concedes that the period between November 2 and November 27, 2015
    is institutional delay. We agree.
[100]

The next relevant
    period of delay is that arising between November 27, 2015 and the imposition of
    sentence on June 1, 2016.  As already discussed, the Crown urges that this
    delay should be attributed to the defence.  For the reasons already given, we
    disagree.
[101]

Some of this
    period, however, was inherent delay. The appellants second abuse of process
    application, dated November 30, 2015, generated at least 30 days of inherent
    delay (the pre-hearing filing period applicable in criminal cases).  The
    remainder of this period, approximately five months, was institutional delay.
[102]

Of the total net
    delay of approximately 29 and one-half months (total delay minus defence delay),
    14 months is therefore properly attributed to inherent delay.  The remaining
    delay  approximately 15 and one-half months  consists of about 10 months of
    institutional delay, and about four and one-half months of Crown delay.  The
    aggregate delay, therefore, exceeds the
Morin
guideline of eight to
    ten months for cases tried in the provincial court.
[103]

Viewing the
    matter as a whole, we conclude that, in the circumstances of this case, the
    Crown would have understood the delay of approximately 15 and one-half months to
    be justifiable, given its reasonable reliance on the
Morin
regime.  We
    say this for several reasons.
[104]

First, with the
    exception of the filing of the appellants s. 11(b) application, the conduct of
    the defence throughout demonstrated a marked disinterest in moving the
    sentencing hearing forward.  As a result, the appellant is poorly positioned to
    complain about the prejudicial impact of delay, an important factor under the
Morin
framework.
[105]

Specifically,
    the record reveals that defence counsel was content to engage in protracted
    exchanges with Crown counsel, attempting to induce a change of election by the
    Crown and to lower the potential sentencing range that applied.  In the
    meantime, the defence did little to advance the case.  Once it was evident that
    an agreed statement of facts could not be achieved, it was Crown counsel who
    sought a sentencing hearing.  The defence agreed.  Yet, when the set date for
    that hearing arrived, defence counsel was unprepared: strategic decisions had
    not been made, and the availability of the defence expert witness had not been
    ascertained.
[106]

The defence
    recalcitrance to a timely resolution did not end there.  As we have explained,
    shortly after its filing, the appellants s. 11(b)
Charter
application
    was amended to include a claim of abuse of process based on alleged
    prosecutorial misconduct.  Then, on the eve of the date set for the release of
    the sentencing judges rulings on those applications, the defence brought a
    second, frivolous abuse of process application, complaining of Crown conduct
    dating back many months earlier, to the spring of 2015.  That this application
    would derail the progress of the sentencing hearing was inevitable.
[107]

Second, we again
    emphasize that the net delay in this case arose primarily in the context of the
    appellants sentencing hearing, after the appellants guilty plea and
    consequential loss of the presumption of innocence.  The sentencing judge
    rightly treated this as a pertinent consideration.  We agree with his
    observations, at para. 40:
There is, in my view, a qualitative difference between a
    criminal case that proceeds on a not guilty plea and one that proceeds on a
    plea of guilt to the offence charged.  In the latter, the accused no longer has
    the presumption of innocence. The disposition (sentencing) portion of a
    criminal case is unquestionably a part of the trial.  However, the finding of
    guilt does subtly affect the assessment of prejudice to the accused in the
    interval between such finding and the imposition of sentence.  In the present
    case, the imposition of sentence could have taken place when the finding of guilt
    was made on March 31, 2014. It was primarily the decisions and the steps taken
    by the accused from then onwards that has precluded a finalization of the
    trial. The accused has been having his trial all along, albeit in a
    piecemeal fashion.
[108]

Finally, the
    seriousness of the offence and prejudice are central considerations under the
Morin
framework.  They also continue to play an important role under the
Jordan
transitional exceptional circumstance:
Cody
, at paras. 69-70. As the
    court said in
Cody
, at para. 71, for a case that pre-dates
Jordan
,
    the focus should be on reliance on factors that were relevant under the
Morin
framework, including the seriousness of the offence and prejudice.  See also
Picard
,
    at para. 43.
[109]

The sentencing
    judge found that the evidence of prejudice to the appellants s. 7
Charter
interests under the
Morin
framework was modest.
[110]

We agree.  The
    record reveals that the prejudice to the appellant caused by the delay was
    minimal and, to a significant extent, self-inflicted.  He was on bail
    throughout and the Crown consented to the only bail variation sought.  Further,
    as we have emphasized, the defence conduct was inconsistent with the objective
    of a timely resolution.
[111]

Unquestionably,
    the offence is also serious.  We note, for example, that the current provisions
    of the
Criminal Code
stipulate that the charge of making available
    child pornography is an indictable offence and, upon conviction, an accused is
    subject to a statutory mandatory minimum sentence of 12 months imprisonment.
[112]

When all these
    factors are viewed cumulatively, and in light of the reasons for the delay
    described above, we agree with the sentencing judges conclusion that the
    prejudice sustained by the appellant from the delay in this case did not
    outweigh the societal interest in having his sentencing hearing proceed to
    completion, without a stay of proceedings due to delay.  To paraphrase the
    language from
Jordan
, the Crown would have understood the delay to be
    reasonable, given expectations under
Morin.
Hence, the delay was
    reasonable under the
Jordan
transitional exceptional circumstance.
[113]

We therefore
    reject this ground of appeal.
Disposition
[114]

For the reasons
    given, the appeal from conviction is dismissed, leave to appeal sentence is
    granted, and the sentence appeal is dismissed.
Released:
DMP                                                  E.A.
    Cronk J.A.
NOV 27 2017                                    I agree
    R.G. Juriansz J.A.
I
    agree David M. Paciocco J.A.

[1]
The appellant filed his
s. 11(b) delay application on April
    10, 2015.  However, this application was amended almost immediately to incorporate
    the appellants first s. 7 abuse of process claim.


[2]

See also the approach adopted by this court in
R.
    v. Coulter
, 2016 ONCA 704.


[3]

The sentencing judges reasons contain inconsistent references
    to the date on which the s. 11(b) application was argued.  At some places in
    his reasons, he refers to September 4, 2015 as the operative date.  At other
    places, he states that the s. 11(b) application was heard on September 14,
    2015.  The transcripts, however, reveal that argument of the s. 11(b)
    application commenced on September 4, 2015 and concluded on November 2, 2015.
