



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue. These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.D., 2020 ONCA 23

DATE: 20200114

DOCKET: C64554, C64610

Doherty, van Rensburg and Hourigan JJ.A.

DOCKET:
    C64554

BETWEEN

Her Majesty the Queen

Respondent

and

R.D.

Appellant

DOCKET: C64610

AND BETWEEN

Her Majesty the Queen

Appellant

and

R.D.

Respondent

Mark C. Halfyard and Lindsay Board, for R.D.

Megan Petrie, for the Crown

Heard: December 20, 2019

On appeal by R.D. from the
    conviction entered on March 28, 2017 by Justice Brian P. OMarra of the
    Superior Court of Justice, sitting with a jury, and from the order of Justice
    Anne M. Molloy of the Superior Court of Justice, dated March 16, 2017, with
    reasons reported at 2017 ONSC 1770.

On appeal by the Crown from the
    sentence entered on October 27, 2017 by Justice Brian P. OMarra of the Superior
    Court of Justice, with reasons reported at 2017 ONSC 6375.

REASONS FOR DECISION

[1]

R.D. was convicted by a court comprised of judge
    and jury of sexual interference, sexual assault and uttering threats to cause
    bodily harm. He was acquitted of incest. The complainant was his younger
    sister, S.D. R.D. was sentenced to three years in prison (30 months for sexual
    interference; 30 months concurrent for sexual assault; and six months
    consecutive for uttering threats).

[2]

The complainant alleged that over the course of
    eight years, commencing in 2001 until 2009, R.D. forced her to perform oral sex
    and digitally penetrated her, eventually having intercourse with her, and
    threatened to hurt her if she told anyone. According to the complainant, the
    abuse began when she was nine years old and R.D. was 18. She believed R.D.
    would hurt her, as there was a history of physical abuse.

[3]

R.D. testified and denied the allegations. He
    admitted to having a poor relationship with the complainant and that he had
    pleaded guilty to assaulting her in 2004, ten years before his arrest on the
    current charges. He blamed the physical abuse on anger and impulse control issues.
    He also testified that he had learning disabilities, anxiety and depression.

[4]

Z.B., the mother of the complainant and R.D.,
    and J.D., the complainants ex-boyfriend, also testified as Crown witnesses at
    trial.

[5]

R.D. appealed his conviction on the basis that
    the trial judges charge to the jury was deficient. He also appealed the
    dismissal of his application for a stay of proceedings under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
. The Crown sought to appeal sentence.

[6]

At the conclusion of oral argument, we dismissed
    the conviction appeal and the sentence appeal with reasons to follow. These are
    our reasons.

A.

Alleged Deficiencies in the Jury Charge

[7]

R.D. asserted that the charge was deficient in
    two material respects: (1) the trial judge neglected to review the defence
    evidence and the inconsistencies between the complainants evidence and that of
    other witnesses, and failed to relate these to the defence theory; and (2) the
    trial judge failed to instruct the jury adequately regarding the elements of
    each offence.

(1)

The treatment of the evidence

[8]

R.D. pointed to the failure of the charge to
    provide a separate summary of his evidence at trial. Instead, the trial judge
    summarized the complainants evidence, and he made reference to the evidence of
    the other Crown witnesses, while making only passing reference to R.D.s testimony.
    R.D. submitted that the result was a charge that was unbalanced and unfair.

[9]

We disagree.

[10]

The standard required of a jury charge is
    adequacy, not perfection. The appellate courts approach is functional,
    assessing the adequacy of the charge as a whole, in the context of the trial in
    which the instructions were given, and in light of its purpose:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at
    paras. 32 to 41;
R. v. Newton
, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The charge must
    provide the jury with a sufficient understanding of the facts as they relate to
    the relevant issues from the trial
:
Jacquard
, at para. 14. The
    trial judge has an obligation to review the substantial parts of the evidence
    and to relate the evidence to the issues to be decided. What is necessary are
    references to the evidence that are sufficient, in the context of the case and
    the entirety of the charge, to alert the jury to the specific parts of the
    evidence that are of significance to its decision on particular issues and to
    the positions of the parties on those issues. The role of the trial judge is to
    decant and to simplify:
R. v. Huard
, 2013 ONCA 650, 302 C.C.C. (3d) 469, at paras. 53 and 56.

[11]

In this case, the trial judges approach to the
    evidence in his jury charge was focused on the issues at trial. He did not
    simply review the evidence of each witness in a narrative way. Rather, he told
    the jury that he was going to review some parts of the evidence of [S.D.],
    that she was a critical witness in the trial, and that their assessment and
    consideration of her evidence would go a long way towards deciding this case,
    bearing in mind [the need] to consider all of the evidence. He then summarized
    parts of the complainants evidence, identifying where her account was
    contradicted by or inconsistent with the evidence of the other witnesses,
    including R.D. For example:

-

After referring to S.D.s evidence that she told
    Z.B. (her mother) about the first incident just after it happened and that Z.B.
    confronted R.D., the trial judge contrasted this account with Z.B.s testimony
    denying that S.D. had reported this incident or any other sexual incident, and
    R.D.s denial that this incident occurred.

-

After referring to S.D.s testimony that R.D.
    tried to sexually attack her when she was taking a shower and that there were
    no locks on the bathroom doors, the trial judge referred to the testimony of
    Z.B. and R.D. that there were locks on the bathroom doors.

-

After referring to S.D.s evidence that Z.B. had
    walked in on R.D. assaulting her doggie style, the trial judge referred to
    Z.B.s evidence denying she had ever seen such an incident. The trial judge followed
    this with a reference to Z.B.s account of seeing the two under a blanket,
    which he characterized as somewhat equivocal.

[12]

Contrary to R.D.s submissions, in these and
    other references to the evidence, the trial judge pointed out the key
    discrepancies between the complainants account and those of the other witnesses
    that might have served to undermine her credibility. In the context of this
    trial, where the complainants credibility was a significant issue, this
    approach was likely more effective than simply providing a witness-by-witness
    summary of the evidence that the jury heard.

[13]

As for R.D.s argument that the trial judges
    approach failed to relate the evidence to his defence, we disagree. The main
    defence, other than R.D.s denial of any instance of sexual contact with his
    sister, was that the complainant had fabricated the allegations because she felt
    angry about the admitted physical assaults she had suffered over the years and she
    wanted to have him out of the house where she would be living with her mother
    and young daughter. The jury was reminded repeatedly that the incidents of
    sexual contact described by the complainant were denied by R.D. His own
    evidence did not advance the fabrication defence. In fact, there are parts of
    his testimony that, when recounted as a narrative, may not have assisted R.D.
    in this case: his recollection that on one occasion he was lying on his bed
    under a blanket with the complainant, and that he said dont have a dirty
    mind, mom when confronted by his mother, and his admission that the
    complainant suddenly began keeping her young daughter from him.

[14]

Ultimately, the case largely turned on whether
    the jury believed the complainant. In his review of the evidence, the trial
    judge pointed out the main areas where her evidence was contradicted by or
    inconsistent with other evidence at trial. And, in reviewing the evidence, the
    trial judge repeated on several occasions the need for the jury to be satisfied
    beyond a reasonable doubt that the sexual acts had occurred.

[15]

Finally, we note that there was no objection to
    this part of the charge. While not determinative, the failure to object to the
    trial judges review of the evidence and how it related to the issues may be
    indicative of the seriousness of what is later said to be error and a factor in
    appellate review:
R. v. Cudjoe
, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 155.

(2)

The review of the elements of the offences

[16]

At the outset of the trial, the trial judge
    provided a brief explanation of the charges with reference to what was alleged
    in the indictment. He told the jury that the complainant was the sister of the
    accused, and that sexual assault is the intentional touching of another person
    without their consent in circumstances of a sexual nature. He explained that
    the complainant could not consent to count 1, the charge of sexual
    interference. He explained that count 2 alleged sexual intercourse and that
    this is an offence often referred to as incest, and that again the Crown did
    not have to prove that the complainant did not consent. With respect to count
    3, the charge of sexual assault, the trial judge stated that he would reserve
    his instructions about the law on that count until the end, and that he would
    do the same with respect to count 4, the charge of uttering a threat.

[17]

In his jury charge, the trial judge returned to
    the elements of the offences. He stated as follows with respect to the first
    three counts:

I am now going to discuss with you the elements of the offences
    alleged in this case. Counts 1 to 3 on the indictment, and you will have a copy
    of that with you in your jury room, allege sexual offences that occurred within
    stated time periods. At the outset of the trial, and before evidence was
    presented I referred to some of the different elements of each of those
    offences that the Crown must prove beyond a reasonable doubt for there to be
    convictions on any of those charges. I referred to Count 1, which is sometimes
    referred to as sexual interference with a person less than 14 years old; and
    Count 2, which is incest, as not requiring proof that the complainant did not
    consent. Consent is not a factor if the person is under a certain age, or if it
    is alleged you had sexual intercourse with a certain, a family relationship.
    Now that the evidence is complete, my instructions to you as to what the
    essential elements to be proven by the Crown are, has become focused and clear
    in this case. [S.D.] has testified that she was the victim of ongoing sexual
    abuse by her brother that escalated from touching her private parts, digital
    penetration, forced fellatio, up to and including intercourse. She did not
    consent to any of those acts and was forced to submit by threats of force.
    [R.D.] has denied that any of the alleged sexual acts took place. You must
    return separate verdicts on each count in the indictment. If you are satisfied,
    in this case, if you are satisfied, based on all of the evidence and my
    instructions on the law, that the sexual acts as described by [S.D.], were
    committed by [R.D.], then Counts 1 to 3 are proven. As I will make clear to
    you, your decision must not be based on whose evidence you prefer over the
    other. There is no onus on [R.D.] to prove he is innocent. The Crown must
    satisfy you beyond a reasonable doubt that he is guilty of any of Counts 1, 2
    or 3.

[18]

During their deliberations, the jury asked the
    following question: Charge 3  Question: (1) for the third charge, please
    clarify the term sexual assault; (2) Please clarify if consent is a factor; and
    (3) Does the age of the alleged victim matter?

[19]

The trial judge invited submissions on the
    answer to the jurys question. Defence counsel indicated that, in the context
    of the evidence, the only question for the jury was whether or not the alleged
    conduct occurred, that there was no evidence in respect of any kind of consent,
    and that if they believed the complainant, the offence would be made out. The
    trial judge answered the question in a manner consistent with these
    submissions. He stated:

Sexual assault is defined in the
Criminal Code
as the
    intentional touching of someone else without their consent in circumstances of
    a sexual nature. Now in some cases of alleged sexual assaults, consent is the
    issue. You will have other cases, not this case, where the defence isthere was
    sexual contact up to and including intercourse, and the defence position in
    those other cases is, but it was with consent. And the Crown, in that case,
    must prove beyond a reasonable doubt that it was not consensual. Okay? Now in
    this case, there is no suggestion by anyone, Crown or defence or [R.D.]that
    any of the alleged sexual events were consensualthe only evidence on the issue
    of consent is from the complainant, who indicated that none of the sexual acts
    were consensual. Okay? But the fundamental issue for you to decide is this, did
    the sexual acts as described by the complainant occur, because if you are not
    satisfied that there were these sexual acts as described by the complainant,
    then [R.D.] is entitled to be acquitted. If you are not satisfied beyond a
    reasonable doubt, this is the fundamental issue to deal with, beyond a
    reasonable doubt that the sexual acts as described by the complainant did
    occur, if there were, if you are satisfied that there were these sexual acts,
    the only evidence on consent is that there was no consent...

[20]

On appeal, R.D. argued that the trial judge
    erred by failing to set out the elements of the offences in his charge to the
    jury, with the result that the jury reached potentially inconsistent verdicts.
    The focus of this submission was on the sexual offences. We disagree.

[21]

Once again, this courts review of the adequacy
    of the charge is functional. A proper jury instruction is one that arms the
    jurors with the information they need to reach a fair and proper verdict
    in the circumstances of the particular case. The trial judges explanation of
    the law must be tailored to those specific circumstances:
R. v. Haughton
(1993),
    11 O.R. (3d) 621, at p. 625, affirmed [1994] 3 S.C.R. 516;
R. v. Rowe
,
    2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 63-64.

[22]

In this case,
when the instructions are looked at functionally, and considered
    together with the response to the jury question, which forms part of the
    charge, the trial judge provided instructions on the elements of each offence
    that were sufficient for the jury to perform its task. The kinds of touching
    that the complainant described were undoubtedly assaults of a sexual nature. Consent
    was not an issue. The trial judge and counsel were
ad
    idem
that the real issue in this trial was whether
    the jury was satisfied beyond a reasonable doubt that the sexual acts as
    described by the complainant had taken place. This was underscored by the trial
    judge in the passage set out above. And, not only was there no objection to the
    trial judges description of the elements of the offences charged, but defence
    counsel, in his submissions on the recharge following the jurys question, specifically
    endorsed the trial judges approach.

[23]

Finally, we do not accept that the way the trial
    judge instructed the jury on the elements of the offences created the potential
    for inconsistent verdicts. The jury had the indictment which provided
    particulars of what was alleged. In respect of the charge of incest, it was
    clear that the charge was of having sexual intercourse. It is telling that the
    jury acquitted R.D. on the charge of incest, while finding him guilty of sexual
    interference and sexual assault. These verdicts, which are not inconsistent,
    suggest that the jury understood the elements of the offences and were not
    satisfied beyond a reasonable doubt that sexual intercourse, which was an
    essential element of the incest charge, had taken place.

B.

The 11(b) Ruling

[24]

R.D. argued that the application judge erred in
    dismissing his s. 11(b) application. He was arrested on September 23, 2014, and
    his trial in the Superior Court began on March 20, 2017 and ended on March 28,
    2017.

[25]

The following timeline sets out the relevant court
    attendances and events:



Sep. 23, 2014

Appellant is arrested.



Sep. 26, 2014

Appellant is released on bail and speaks to Legal Aid,
          which advises him they need Crown disclosure and screening form to process
          his application.



Oct. 30, 2014

Matter is traversed to 1000 Finch for November 27. No
          disclosure made. The Crown informs the Court that disclosure would be
          prepared at 1000 Finch.



Nov. 27, 2014

Some disclosure is provided. Appellant advises that he had
          retained counsel Mr. Zoppi. Matter is remanded to January 8 at request of
          both Crown and defence.



Jan. 8, 2015

Crown advises that further disclosure has been provided to
          R.D., and that the DVD containing the complainant interview was available,
          but would only be disclosed to R.D.s lawyer given the nature of the charges.
          The Court is advised that R.D. wanted to retain Mr. Zoppi but had not made an
          application to Legal Aid as he had not received a charge screening form from
          the Crown. Matter is remanded to January 29 to allow R.D. to perfect his
          Legal Aid application. With the required materials, R.D. applies for and
          receives Legal Aid that day.



Jan. 29, 2015

Articling student from R.D.s lawyers office appears and DVD
          is provided. The matter is remanded to February 12, 2015.



Feb. 12, 2015

Defence requests adjournment to March 5, 2015 to allow
          counsel to review DVD and to schedule a Crown pre-trial (CPT) with the
          assigned Crown.



Mar. 5, 2015

Court is advised that a CPT has been scheduled for March
          9. Matter is remanded to March 12 to schedule preliminary hearing.



Mar. 12, 2015

Court is informed that CPT conducted and judicial pretrial
          (JPT) is scheduled for April 2



Apr. 2, 2015

JPT is conducted and November 23 and 24, 2015 are set for
          preliminary inquiry.



Nov. 24, 2015

Appellant is committed to stand trial in Superior Court.



Dec. 17, 2015

Appellant appears in Superior Court. Matter is adjourned
          to February 2, 2016 for a JPT.



Feb. 2, 2016

JPT is conducted. October 25, 2016 set for a seven-day
          trial with a jury. Defence indicates intention to bring third-party records
          application.



Sept. 2016

Defence delivers third party records application.



Oct. 24, 2016

Trial scheduled to begin. No judge available. Trial
          adjourned.



Oct. 26, 2016

Third party records application heard. Matter is remanded
          to November 28.



Nov. 28, 2016

Trial scheduled to begin. No judge available. Trial
          adjourned.



Nov. 30, 2016

New trial date of March 20, 2017 set.



Mar. 16, 2017

Section 11(b) application argued and dismissed.



Mar. 20, 2017

Trial begins.



Mar. 28, 2017

Trial ends.



[26]

The application judge determined that the total
    delay was 30 months and six days, just over the presumptive ceiling prescribed
    by
Jordan
(
R. v.
    Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631)
. There is no dispute about the calculation of the overall
    delay. R.D. asserted that the application judge erred in attributing part of
    the delay to the defence, which brought the net delay under the threshold. In
    the alternative, R.D. submitted that the application judge erred in her
    conclusion that the defence had not established unreasonable delay.

[27]

The application judge attributed two periods of
    delay to the defence.

[28]

The first was the delay caused by R.D.s failure
    to complete his Legal Aid application in a timely way. R.D. had known since his
    first appearance on September 26, 2014 that he needed a Crown screening form to
    complete his Legal Aid application. He did not raise the matter in his next two
    appearances.
On both
    occasions, he was assisted by duty counsel and had already consulted with the defence
    counsel that he wished to retain.
When R.D. raised the
    issue on January 8, 2015, the form was immediately provided by the Crown and
    R.D. was approved the same day for Legal Aid. On that day the matter was put
    over to January 29, 2015.

[29]

The DVD recording of the complainants statement
    was available by January 8, 2015. The application judge attributed to R.D. part
    of the delay from January 8 to 29, 2015, when an articling student from the
    office of R.D.s lawyer attended court, and on that day received the DVD.

[30]

The second period of delay attributed to the
    defence was part of the period from February 12 to March 5, 2015. The
    application judge acknowledged that it was reasonable on January 29 to adjourn
    to February 12, a date agreed to by defence counsel, so that defence counsel
    could prepare before setting a Crown pre-trial date. However, on February 12,
    defence counsel stated that we have just recently received the complainants
    video statement and that were just going through it, and requested a
    further adjournment to March 5, 2015, before setting the pre-trial date. The
    application judge noted that the total length of the DVD was under two hours
    and that the defence had it for two weeks before asking for another three weeks
    to review it and to arrange a pre-trial.

[31]

The application judge did not precisely define
    the amount of delay attributable to the defence, but she noted that the delay
    considerably exceeded six days and therefore brought the delay beneath the
    30-month ceiling.

[32]

R.D. argued that the application judge erred in
    attributing any part of these two delays to the defence. With respect to the
    first period, he claimed that Legal Aid required a Crown screening form and
    disclosure to process the defence application, and that because no disclosure
    except the information and synopsis was actually ready until January 8, 2015,
    an adjournment would have resulted in any event. As for the second period, R.D.
    says that a period of six weeks was not unreasonable for counsel to review the
    complainants statement, to consider possible defences, and to hold a Crown
    pre-trial. In other words, the purpose of the adjournment was not simply to
    review the complainants statement.

[33]

We disagree. The characterization of the periods
    of delay and the ultimate decision on an application for a stay are reviewable
    on a standard of correctness whereas findings of fact are entitled to deference
    and reviewable on a standard of palpable and overriding error:
R. v.
    Florence
, 2014 ONCA 443, 312 C.C.C. (3d) 165, at para. 39.

[34]

The application judge did not attribute all of
    the delay in the two periods in question to the defence. She was aware of the
    fact that on each of the earlier dates no, or only minimal, Crown disclosure
    had been provided. The application judge did not attribute any of the delay
    between R.D.s first appearance and January 8 to defence delay. However, she
    reasonably concluded that
some
of the delay between January 8 and 29 was
    attributable to the defence because R.D. did not advise that he needed a Crown
    screening form until January 8, which delayed his Legal Aid appointment of
    counsel.

[35]

By January 8, the Crown had provided more
    disclosure (in the form of police notes, etc.), and advised that a DVD of the
    complainants statement was available but would only be provided to counsel. Had
    R.D. retained a lawyer before the January 8 court attendance, counsel could
    have received disclosure of the DVD at that time. The application judge
    reasonably concluded that, accordingly, at least some part of the delay when
    the matter was adjourned for a further three weeks was attributable to the
    defence delay. There is no evidentiary basis for the assertion on appeal that, even
    if R.D. had asked for the Crown screening form on an earlier occasion, he would
    not have been able to proceed with his Legal Aid application in any event
    because full disclosure had not been made.

[36]

As for the second period of defence delay, on
    January 29 defence counsel had agreed to an adjournment to February 12 for the
    purpose of obtaining and reviewing the DVD and having a Crown pre-trial. Although
    the DVD was obtained on January 29, on February 12 defence counsel asked for an
    adjournment to March 5, and it was only on that date that a Crown pre-trial
    date was set and the matter remanded to March 12. The application judge
    specifically recognized that a reasonable period of time for defence counsel to
    prepare is not properly described as delay by the defence. However, after
    referring to the fact that the DVD was only two hours long and that the defence
    had received it more than two weeks earlier, she concluded that at least some
    portion of the time between February 12 and March 5 (when the defence was ready
    to set a Crown pre-trial date) was attributable to defence delay and must be
    subtracted from the total overall delay. We see no basis to interfere.

[37]

Accordingly, we see no error in the application
    judges allocation of at least six days to defence delay. As a result, there
    was no presumption of unreasonable delay and no onus on the Crown to rebut the
    presumption.

[38]

We also do not accept that the application judge
    erred in rejecting R.D.s argument that the delay, in any event, was unreasonable.
    Where the net delay falls below the presumptive ceiling, the onus is on the
    defence to show that the delay is unreasonable. To do so, the defence must
    establish both that (1) it took meaningful steps that demonstrate a sustained
    effort to expedite the proceedings; and (2) that the case took markedly longer
    than it reasonably should have:
Jordan
, at para. 82. For cases that
    were in the system when
Jordan

was decided, these factors must
    be applied contextually and flexibly, sensitive to the parties reliance on the
    previous state of the law:
Jordan
, at para. 99;
R. v. Coulter
,
    2016 ONCA 704, 340 C.C.C. (3d) 429, at paras. 58, 87-89.

[39]

The application judge concluded that R.D. had
    not met either branch of the test. She was not satisfied that the defence had
    shown initiative in moving the matter ahead, and the delay in getting the case
    to trial was not a marked departure from the reasonable time requirements of
    the case. She considered a variety of factors, including the complexity of the
    case, local considerations, and whether the Crown took reasonable steps to
    expedite the proceedings:
Jordan
, at para. 87. It was in this context
    that she referred to the delays caused by the circumstances of the Superior
    Court in Toronto in the fall of 2016 as local circumstances.

[40]

R.D. asserted that the application judge made
    two errors: first, because this was a transitional case, she erred in unduly
    emphasizing defence initiative. Although the first prong of the test requires
    the defence to show a sustained effort to expedite the proceedings, the
    defence need not demonstrate having taken initiative to expedite matters for
    the period of delay preceding [
Jordan
]. Second, R.D. argued that the
    application judge wrongly relied on the lack of available judges to hear his
    case as a local consideration that justified the delay. He submitted that
    local considerations cannot include the governments failure to appoint
    sufficient judges, and that in this case, the reason for the delay was that his
    trial was adjourned twice because it could not be accommodated by the court,
    which added five months to the total period of delay and resulted in 15 months
    total time post-committal in the Superior Court.

[41]

We would not interfere with the application
    judges conclusion that R.D. did not establish unreasonable delay. Even taking
    into consideration that this was a transitional case, although defence counsel
    indicated his intention to bring a third-party records application at the
    judicial pre-trial on February 2, 2016, the application was only served in
    September 2016, two months after
Jordan

was released, and
    leaving insufficient time to have the application determined before the first
    scheduled trial date. The application judge reasonably concluded that the
    failure to bring the application well in advance so as not to jeopardize the
    trial date was not consistent with a sustained effort to expedite the
    proceedings as required under
Jordan
.

[42]

Moreover, there is no error in the application
    judges approach to and assessment of whether the time in this case markedly
    exceeded the reasonable time requirements of the case. She reasonably
    considered the circumstances that existed in the Superior Court in Toronto
    immediately post-
Jordan
, including the dramatic decline in the number
    of cases that resolved prior to their trial dates. We agree with her
    assessment that this was not a clear case of unreasonable delay.

[43]

Accordingly, we do not give effect to this ground
    of appeal.

C.

Sentence Appeal

[44]

The Crown sought to appeal the sentence,
    asserting that the trial judge did not give effect to an aggravating factor:
    that R.D. was in a position of trust in relation to the complainant. The Crown
    asked this court to find that the sentence was in error and to impose a higher
    sentence of six years in custody.

[45]

The
Criminal Code
provides for a number
    of statutory aggravating circumstances, including that the offender, in
    committing the offence, abused a position of trust or authority in relation to
    the victim: s. 718.2(a)(iii). The onus is on the Crown to establish the
    aggravating factor beyond a reasonable doubt.

[46]

Here, the trial judge concluded that, while R.D.
    as the older brother was in a position to exert physical and sexual domination
    of the complainant in the home and despite the age difference, this did not amount
    to a position of trust
in the particular circumstances
:
at para.
    28
.

[47]

On appeal, the Crown asserted that the evidence
    fully supported the aggravating factor of R.D.s breach of trust in committing
    the offences on his much younger sister in the family home, and that the trial
    judge erred in law in concluding otherwise.

[48]

We do not agree that the trial judges decision
    reveals error. While R.D. was many years older than S.D., and much bigger than
    and physically stronger than S.D., he also had an intellectual disability. The
    evidence was that, until she was 12, S.D. and her younger brother went to a
    babysitters home while their mother was at work and that, after that, S.D.
    took care of her younger brother. There was no evidence of a caregiving
    relationship between R.D. and his younger siblings. The trial judge was not
    prepared to accept, in the circumstances of this case, that a position of trust
    followed from the age difference and R.D. and the complainant being alone in
    the home. In our view, the conclusion that, in the particular circumstances of
    this case, the aggravating factor had not been made out was available to the
    trial judge on the evidence.

[49]

For these reasons, although we granted leave to
    appeal sentence, we dismissed the sentence appeal.

Doherty J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.


