



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this
    section, no person shall publish the name of a young person, or any other
    information related to a young person, if it would identify the young person as
    a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this
    section, no person shall publish the name of a child or young person, or any
    other information related to a child or a young person, if it would identify
    the child or young person as having been a victim of, or as having appeared as
    a witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence
    punishable on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.G., 2020 ONCA 357

DATE: 20200609

DOCKET: C64190

Nordheimer, Harvison Young and
    Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.G.

Appellant

Howard L. Krongold, for the appellant

Joanne Stuart, for the respondent

Heard: March 11, 2020

On appeal from the conviction entered on
    May 5, 2017 by Justice Mitch Hoffman of the Ontario Court of Justice.

Harvison Young J.A.:

[1]

C.G. was convicted of multiple charges arising
    out of a series of swatting incidents that took place in early 2014. These charges
    included public mischief, mischief to property, and uttering threats. At the
    time of his arrest in early May 2014, the appellant was 16 years old and home
    schooled.

[2]

The appellant sought a stay of proceedings on
    the basis that his right to a trial within a reasonable time under s. 11(b) of
    the
Canadian Charter of Rights and Freedoms
was violated. The trial
    judge denied the appellants request. This is the only ground raised on this
    appeal.

[3]

The appellants argument is narrow and focusses
    on delay arising from two instances of Crown conduct, both of which occurred
    before the trial began. First, he submits that the Crown took excessive time
    for disclosure and did not set the trial date as promptly as it should have.
    Second, and at the heart of this appeal, the appellant argues that the Crown
    failed to digest the disclosure at the outset and thus proffered a woefully
    inadequate trial time estimate. In the appellants view, the trial time
    underestimation made it necessary to request further continuations, which were
    only available on much later dates, causing greater delay than would have been
    the case if the estimate had been accurate at the outset.

[4]

The time between the appellants arrest and the
    end of the trial was just under three years. As there was no defence delay, the
    net
Jordan
delay is three years. There is no dispute that this delay
    exceeds the presumptive ceiling outlined in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631 for trials in the Ontario Court of Justice. The question is
    whether the Crown discharged its burden to show exceptional circumstances that
    render this delay reasonable.

[5]

For the following reasons, I would dismiss the
    appeal.

A.

FACTUAL BACKGROUND

[6]

The appellant was accused of initiating various
    swatting incidents that took place in multiple places across North America  including
    California, Quebec, Alberta, and Ontario  over about a month in early 2014. The
    term swatting refers to hoax threats that lead to tactical police or special
    weapons and tactics (SWAT) team responses.

[7]

The swatting threats in this case were directed primarily
    at schools, and in one instance a mall. In some instances, the caller claimed
    they had planted a bomb inside the premises and that people were going to die.
    The caller sometimes added that they were armed and prepared to shoot people. In
    other instances, the caller said they had taken people hostage. As a result of
    these hoax threats, schools were evacuated, and homes were entered by tactical police
    teams. The calls to the police were made using a Skype account with the
    username Anonymouse Official.

[8]

At trial, the appellant admitted that the calls
    had been made but denied that he had made them. The case was circumstantial. As
    all parties readily acknowledge, and as the trial judge noted in his reasons,
    the case was technically complex. The Crown was required to link the appellant
    to the Anonymouse Official Skype account through associated Twitter and Gmail
    accounts. Much of the crucial evidence was led through a Crown expert in
    computer forensics.

[9]

The defence position was that it was a
    reasonable inference that one or more third party hackers  either the
    appellants online enemies or hacktivists  had hacked into the appellants
    computer, made these threats and calls using a remote access tool, and used
    malware to cover their tracks.

[10]

The appellant was arrested on May 8, 2014. The
    Crown took about six and half months to complete disclosure, and the defence
    received a crucial forensic report in mini form in early November 2014. On
    November 25, 2014, based on counsels estimate of required trial time, the
    trial was set for 10 days, June 16-29, 2015, at the Ontario Court of Justice.

[11]

The trial began on the scheduled date. By that
    time, it had become clear that the initial 10-day trial estimate was inadequate.
    It became necessary to obtain dates for continuation. The trial judge requested
    that the continuances be scheduled in blocks of four days or more. The parties
    ultimately secured additional dates for February 3-9; February 29-March 4;
    April 20-21; May 5-6; and May 9-10. The s. 11(b) application was heard on May
    9-10, 2016. I note that the parties also secured shorter blocks of time in
    between these continuances to deal with a
voir dire
on the voluntariness
    of the appellants statement to the police and a similar fact application.

[12]

For the purposes of this appeal, the key point
    is that the trial took about 30 days to complete  instead of the 10 days in which
    the trial was originally scheduled  and the evidence was not completed until
    May 10, 2016. Pending the trial judges decision on the s. 11(b) application
    and the receipt of written closing submissions,
Jordan
was released in
    July 2016. The parties made oral closing submissions on October 24-25, 2016.
    Shortly after this, the parties agreed to file additional submissions to
    address
Jordan
and did so in late November and early December of 2016.

[13]

On February 14, 2017, the trial judge delivered
    his reasons dismissing the s. 11(b) application. On May 5, 2017, he delivered
    his reasons for judgment convicting the appellant. A few months later, the
    trial judge sentenced the appellant to nine months in a youth open custody
    facility.

B.

The trial judges reasons on the s.11(b) application

[14]

In applying the framework in
Jordan
, the
    trial judge applied a presumptive ceiling of 15 months for youth offenders,
    based on
R. v. J.M.
, 2017 ONCJ 4, 344
    C.C.C. (3d) 217,
at paras. 138, 141, 144 and 145. He assumed that
    the total delay period ended with the anticipated date of final judgment, not
    with the end of the evidence. As he found no defence delay in the case, the net
    delay was just under three years.

[15]

This delay exceeded the presumptive ceiling of
    15 months, so the delay was presumptively unreasonable. Consequently, the Crown
    bore the burden of justifying the delay through showing exceptional
    circumstances that were reasonably unforeseen, reasonably unavoidable, and
    reasonably irremediable.

[16]

The trial judge agreed with the Crown that this
    case was particularly complex, which constituted an exceptional circumstance
    justifying the delay. Though the trial judge noted that the initial trial time
    estimate was woefully inadequate, he found the Crown made the estimate in
    good faith. The case involved relatively novel evidence, at least to the
    criminal courts. In the future, more realistic time estimates for such complex
    cases would be expected.

[17]

The trial judge listed various ways the cases complexity
    impacted the delay. Given the inadequate trial time estimate, it was necessary
    to schedule further dates for continuation. The trial judge had requested that
    these new dates be scheduled in blocks of four days or more, due to the nature
    of the evidence. As he explained:

Given the nuanced, interrelated, and highly
    complex nature of the individual pieces of circumstantial evidence which the
    Crown reasonably required to call to try to establish identity, each time the case
    came back for trial continuation all parties were required to get up to speed
    on the previous testimony to fully appreciate the relevance and
    interconnectedness of the nuance [sic] circumstantial evidence.

[18]

The requirement of larger blocks of time for continuations
    meant that they were much more difficult to schedule. As a result, the trial
    was spread out over a longer time than would have been the case if only another
    day or two had been required.

[19]

In addition to the technical detail of the
    evidence, the trial judge noted that the number of charges (34), the range of
    jurisdictions where the incidents took place, and the large number of discrete swatting
    incidents, added to the cases complexity. The only issue was identity, but the
    case was circumstantial.

[20]

Further, the trial judge acknowledged that,
    going into the trial, his level of computer forensic knowledge was
    significantly limited. Consequently, he frequently asked that evidence be
    repeated, explained, or given at a slower pace.

[21]

The trial judge found that both the Crown and
    the defence worked diligently to move the case along. In particular, he stated it
    was reasonable that the initial trial date was set within six and a half months
    of the appellants arrest, by which time thousands of pages of highly
    technical disclosure, including the expert report in mini form, had been
    disclosed.

[22]

He also found that the Crown took numerous steps
    to address the delay when it became apparent that the initial 10-day estimate
    would become insufficient. Such steps included raising the issue of inadequate
    time a month before trial; securing additional trial time before the trial
    began; and declining to call further witnesses as initially planned, having
    recognized that calling its forensic evidence had taken unexpectedly long.

[23]

To conclude his analysis on the exceptional
    circumstance of complexity, the trial judge stated:

In sum, this was an extremely complex case
    requiring an inordinate amount of investigation, preparation time, trial time,
    time to schedule trial continuations, to write and make argument, and
    ultimately to provide judgment.

[24]

In concluding that the delay in this case was
    reasonable due to the cases complexity, the trial judge relied heavily on
Jordan
,
    at para. 80, which reads:

Where the trial judge finds that the case was
    particularly complex such that the time the case has taken is justified, the
    delay is reasonable and no stay will issue. No further analysis is required.

[25]

The trial judge determined that if he was wrong
    that the exceptional circumstance of complexity justified the delay, then the
    transitional exceptional circumstance justified the delay. To begin, he cited
R.
    v. Williamson
, 2016 SCC 28,

[2016] 1 S.C.R. 741
, as
    articulating the factors relevant to whether the transitional exceptional
    circumstance applies to justify delay above the presumptive ceiling. The trial
    judge assessed five relevant factors in this case.

[26]

First, for the reasons stated earlier, the case
    was highly complex.

[27]

Second, using attributions that were overly
    generous to the [appellant], the
Morin
delay in this case was in the
    range of eight and a half months. This exceeded the five to six-month
Morin
guideline for regular youth matters. However, this case was anything but
    a one to two day run of the mill case. In this context, the excess delay was not
    significant.

[28]

Third, the Crowns response to institutional
    delay was focused, efficient, and effective. The defence was also eager to
    move the case along.

[29]

Fourth, there was limited prejudice to the appellant.
    Media coverage of the incidents greatly diminished as time went on, and the
    appellant was able to finish school on schedule. Upheaval in the appellants
    life was only partly caused by his bail conditions. While the cost of defence
    counsels service was understandably high, the cost would not have been less
    and may have actually increased if the trial continuations were scheduled in
    shorter blocks of time.

[30]

Lastly, the charges were serious. The swatting
    incidents had wide and significant impact, law enforcement resources were
    wasted, homes and schools were invaded, and (often young) people had
    unpleasant, sometimes traumatizing, encounters with the police.

[31]

Balancing these factors, the trial judge found
    that the delay would have been reasonable under
R. v. Morin
, [1992] 1
    S.C.R. 771, and thus the transitional exceptional circumstance applied to
    justify the delay.

C.

The parties submissions

[32]

The parties agree that the case was complex in
    terms of the volume of evidence and its technical foundations. However, the
    appellant submits that the cases complexity does not give the Crown license to
    breach the
Jordan
ceiling. Instead, when the presumptive ceiling is
    exceeded, the Crown must show that it has taken reasonable steps to avoid or
    mitigate the delay.

[33]

The appellant argues that the Crown failed to take
    such reasonable steps in two ways. First, the Crown took excessive time to
    disclose key evidence, particularly the initial mini forensic report, which
    was necessary to set trial dates.

[34]

Second, and central to the appellants s. 11(b)
    appeal, is that the Crowns trial time estimate was woefully inadequate. The
    appellant argues that the mere fact of complexity and the Crowns good faith
    conduct does not relieve it of the responsibility to develop and follow a plan
    to minimize the delay occasioned by a complex case. The Crown should have fully
    digested the evidence and appreciated the trials complexity before setting the
    trial date. Had it done so, it would have been obvious that the trial could not
    be completed in 10 days. As it stands, the Crowns initial 10-day estimate was symptomatic
    of the Crowns failure to develop a solid plan for bringing the matter to
    trial within a reasonable time. The delay was in the Crowns control and the exceptional
    circumstance of complexity should not apply.

[35]

The appellant also argues that the Crowns
    failure to develop and follow a realistic plan for the trial prevents the
    transitional exceptional circumstance from applying. In addition, he says the
    trial judge erred in failing to infer prejudice to the appellant resulting from
    the three years of delay. Inferred prejudice was especially warranted in this
    case, given the appellant was a young person.

[36]

On the disclosure issue, the Crown argues that disclosing
    the mini forensic report and setting the trial date six and a half months
    after the appellants arrest was reasonable in this case. The forensic expert
    required highly voluminous and technical information from multiple
    jurisdictions.

[37]

On the time estimate issue, the Crown relies on
    the exceptional circumstance of complexity to justify the delay. It highlights
    that defence counsel shares responsibility for the initial trial estimate, as
    he had pressed for a trial date to be set quickly. The Crown also emphasizes
    the that the trial judge found that the Crown had made the initial time
    estimate in good faith, and the Crown was proactive in addressing delay when
    she realized the trial estimate was inadequate. These are factual findings
    entitled to deference on appeal. The forensic evidence at trial was extremely
    technical, while the trial judges computer knowledge was limited. The Crown
    submits that, given the complexity of this case, the appellants argument would
    impose an unfairly strict standard assessed with the benefit of hindsight.

[38]

In the alternative, the Crown submits that the
    transitional exceptional circumstance under
Jordan
should apply and,
    as a result, the delay was reasonable. It relies on the arguments above to
    conclude that the delay would have been reasonable under
Morin
. The
    Crown adds that any inferred prejudice would be outweighed by the complexity of
    the case and the seriousness of the offences.

D.

Law and Analysis

[39]

Jordan
sets
    ceilings beyond which delay is presumptively unreasonable. For cases in
    provincial court, the presumptive ceiling is 18 months from the charge to the
    actual or anticipated end of trial. Defence delay does not count towards the
    presumptive ceiling.

[40]

While the trial judge applied a lower 15-month
    presumptive ceiling for youth matters, the Supreme Court of Canada has since clarified
    that the presumptive ceilings in
Jordan
apply equally to youth
    matters:
R. v. K.J.M.
, 2019 SCC 55, 381 C.C.C. (3d) 293, at paras.
    62-68. As such, the applicable ceiling for this case, which occurred in the
    Ontario Court of Justice, is 18 months.

[41]

The appellant was arrested and charged on May 8,
    2014. The trial judge delivered his reasons for judgment convicting the
    appellant on May 5, 2017. The total delay was about three years. As there was
    no defence delay in this case, the net or Jordan delay is about three years. This
    delay exceeds the presumptive ceiling of 18 months. The Crown must establish
    that the delay is reasonable by showing exceptional circumstances apply.

[42]

For the reasons that follow, I find that the
    trial judge did not err in concluding that the Crown met its burden to show that
    the exceptional circumstances of complexity and that the transitional
    exceptional circumstance rendered the delay in this case reasonable.

(1)

Complexity was an exceptional circumstance

[43]

In
Jordan
, at paras. 77 to 78, Moldaver J. described
    particularly complex cases as follows:

Particularly complex cases are cases that,
    because of the nature of the
evidence
or the nature of the
issues
,
    require an inordinate amount of trial or preparation time such that the delay
    is justified. As for the nature of the evidence, hallmarks of particularly
    complex cases include voluminous disclosure, a large number of witnesses,
    significant requirements for expert evidence, and charges covering a long
    period of time. Particularly complex cases arising from the nature of the
    issues may be characterized by, among other things, a large number of charges
    and pre-trial applications, novel or complicated legal issues, and a large
    number of significant issues in dispute.

if an inordinate amount of trial or
    preparation time is needed as a result of the nature of the evidence or the
    issues such that the time the case has taken is justified, the complexity of
    the case will qualify as presenting an exceptional circumstance. [Emphasis in
    original.]

[44]

This was a case that bore all the hallmarks of
    complexity. As the trial judge noted, the nature of the evidence was very
    technical and included the following topics: Skype operability (how logs are
    stored and how they may be manipulated), metadata, virtual private networks,
    proxy servers, Internet Protocol addresses (spoofing, dynamic versus static),
    malware such as Trojans, botnets, Tor browsers, distributed denial of service,
    and voice modification software. The case involved competing expert witnesses
    and voluminous disclosure. The appellant faced multiple charges arising out of several
    discrete swatting incidents occurring in various jurisdictions across North
    America.
Detective Alan Reed, the Crowns expert witness, testified that
    this case was the biggest he had ever dealt with in his 21-year career as a
    police officer, in terms of the amount of data he had to
analyse
and the time it took to
analyse
it.

[45]

As indicated earlier, the appellant argues the
    Crown took excessive time to disclose evidence, causing a delay in setting the
    trial date. The trial judge found the amount of time required for disclosure
    and setting the trial dates was very reasonable, given the inherent
    complexities of the case. Given the highly technical and voluminous nature of
    disclosure in this case, I agree that pace of disclosure was reasonable.

[46]

The second impugned delay, which arose from the
    underestimate of the time required for trial, presents a more difficult
    problem. The Crown bears the burden of showing that it acted reasonably to
    minimize the delay arising from the cases complexity. During the s.11(b)
    hearing held before the release of
Jordan
,
the Crown fairly acknowledged that the trial time underestimate
    arose partly because the defence was pressing to set a trial date, but she had not
    been able to review the disclosure in enough depth in order to come up with a
    more accurate trial estimate. She stated:

[I]f I were to do it over againI would either
    slow it down and say, I need more time, so that I can fully digest this
    material and come up with, what is likely a more suitable trial estimate. Or,
    alternativelyif I cant prevent my friend from setting a trial date to give me
    that time, I would make the point of saying that on the record, that Ive said
    10 days; my preference would be to wait another four weeks or six weeks, so I
    canread more of this. But I cant; and no one will allow me, so 10 days is my
    best guess. Thatsthe learning experienceand thats how I think I couldve
    done itbetter to avoid, maybe, some of these pitfalls.

[47]

In oral argument, one of the issues raised was
    that it is now impossible to quantify the amount of time that was lost because
    of this underestimate. If the Crown had sought a trial date in November 2014
    for a 30-day trial, when would the trial have commenced and concluded? No
    evidence was led on this point so we do not know what that time frame would
    have been, or whether it could have been established at that point.

[48]

The appellant argues that the Crowns failure to
    provide the answer to this question, in combination with its failure to provide
    an accurate time estimate at the outset, means that the Crown did not establish
    that the delay was reasonable. I disagree for a few reasons.

[49]

First,
Jordan
does not require
    perfection. Rather, it requires that the Crown, and all justice participants, be
    proactive in mitigating delay. Here, the Crowns mistake was estimating the
    trial length before she had been able to sufficiently digest the disclosure. Somewhat
    ironically, the Crown did this in part to obtain a date as soon as possible, as
    the defence counsel was urging her to do. The trial judge found that the Crown
    made this trial estimate in good faith. This finding is entitled to deference.

[50]

Second, this was not a case of the sort of
    complacency that
Jordan
seeks to address. As the trial judge noted, the
    Crown consistently took initiatives to mitigate delay throughout the process.

[51]

For instance, the Crown was proactive in seeking
    additional trial dates. About one month before the trial, the Crown raised the
    issue of inadequate trial time in case management. The trial judge noted that
    the Crown sought a last minute pre-trial to discuss confirmed trial admissions
    in order to ensure the trial time was sufficient. At this pre-trial, the Crown
    learned for the first time the defence was contemplating expert evidence. It
    was the Crown who then sought and secured five additional days of trial time,
    before the trial began.

[52]

The Crown also made efforts to ensure time was
    used as efficiently as possible. At the outset of the trial, the Crown provided
    a detailed summary to assist the trial judge in following the complex evidence,
    which the trial judge called essential. The trial judge also found that there
    was no delay of any significance caused by technology not being ready,
    including video testimony from witnesses out of the country, or testimony from
    youthful witnesses travelling to Ottawa. He expressed that this level of
    technological efficiency was rare.

[53]

On June 24, 2015, when it became apparent that
    the initial trial estimate was inadequate, it was the Crown that suggested that
    the court deal with the
voir dire
on voluntariness before the longer continuation
    dates, since it was a discrete issue that could be resolved in the interim.
    More generally, like defence counsel, the Crown showed up on time at the start
    of the day, after breaks, worked late on occasion, agreed to shorten lunch
    hours, started earlyand [was] ready to use the time efficiently every day.

[54]

Third,

in assessing the complexity of a
    matter as an exceptional circumstance under
Jordan
, the approach
    should be qualitative rather than quantitative:
R. v. Cody
, 2017 SCC
    31, [2017] 1 S.C.R. 659, at para. 64. A cases complexity as a whole may be
    relied upon to fully justify the delay in a case:
Jordan
, at para. 80.

[55]

The qualitative assessment here leads to the
    conclusion, for the reasons mentioned by the trial judge, that this was an
    unusually difficult case. Even if the Crown had been able to fully digest the
    disclosure before setting the trial date, it is difficult to say that the
    estimate would or could have been very accurate, or that it would have
    substantially eliminated the delay in this case. The parties did not know who
    the trial judge would be. As the trial judge noted, he had little experience
    with technological evidence and he required the experts to proceed slowly and answer
    many questions to ensure that he understood the evidence. The Crown did not
    know that the defence would be calling its own expert until about three weeks
    before the trial was set to begin. Nor did it know that there would not only be
    one s.11(b) application, but also that revised submissions and additional time
    would be required as a result of the intervening
Jordan
decision. Further,
    at the trial judges request, the parties had to schedule trial continuations
    in blocks of four days or more, which likely took longer to obtain than a day
    or two would have. On the other hand, it may well have been more efficient, as
    the trial judge hoped, by reducing the breaks in the evidence and time needed
    to gear up on each continuance date.

[56]

As stated in
Jordan
, at para. 79, the
    determination of whether a cases complexity is sufficient to justify its
    length falls well within the trials judges expertise. I see no basis for
    interfering with the trial judges conclusion on this issue. Although the delay
    in this case exceeds the presumptive ceiling, I am satisfied that the delay was
    justified by the complexity and unprecedented nature of the case in all of these
    circumstances.

(2)

The transitional exceptional circumstance
    applies

[57]

In the alternative, if the cases complexity does
    not justify the delay, the Crown relies upon the transitional exceptional
    circumstance. In order to successfully invoke the transitional exceptional
    circumstance, the Crown must establish that the time the case has taken is
    justified, based on the parties reasonable reliance on the previous state of
    the law:
Jordan
, at para. 96.

[58]

R. v. Gopie
,
    2017 ONCA 728, 140 O.R. (3d) 171, at para. 178, sets out the factors that inform
    the transitional exceptional circumstances analysis. These factors are:

i)

the complexity of the case;

ii)

the period of delay in excess of the
Morin
guidelines;

iii)

the Crowns response, if any, to institutional delay;

iv)

the defence efforts, if any, to move the case along; and

v)

prejudice to the accused.

[59]

As I have already discussed, this was a highly
    complex case. The trial judge held that the institutional delay in this case was
    in the range of eight and a half months. The appellant does not challenge this
    finding. While this delay is over the five to six-month
Morin
guideline
    for youth cases, the trial judge found the excess delay was not significant in
    light of the cases complexity. I agree.

[60]

Moreover, and as discussed earlier, the Crown did
    not have a complacent attitude towards delay. Instead, the Crown actively
    worked to mitigate delay, and its response to the institutional delay was focused,
    efficient and effective. The defence also helped move the case along and used
    court time efficiently.

[61]

I also agree with the trial judge that the
    appellant suffered minimal actual prejudice arising from the delay. While the
    trial judge did not explicitly consider inferred prejudice, I find that any
    inferred prejudice would be outweighed by other relevant considerations under
    the
Morin
analysis.

[62]

Notably, the offences here were very serious. As
    the trial judge outlined, the multiple swatting incidents had wide and deep
    impact. There were numerous victims confronted by police in the sanctity of
    their homes or schools. Many of the immediate victims were school-age children
    or young adults. These victims families and communities also suffered from lasting
    fear and anxiety due to the swatting and necessary aggressive police responses.

[63]

When assessing whether the transitional
    exceptional circumstance applies, the seriousness of the alleged offences remains
    a significant consideration:
R. v. Baron
, 2017 ONCA 772, 356 C.C.C.
    (3d) 212, at para. 73.

As this court outlined in
R. v. Seegmiller
(2004),
    191 C.C.C. (3d) 347, at para. 25, leave to appeal refused, [2005] S.C.C.A. No.
    64:

Where the nature of the allegation establishes
    a heightened societal interest in a trial on the merits, the absence of
    prejudice (particularly to the accuseds fair trial interests) takes on added
    significance in the s. 11(b) calculusthe absence of meaningful prejudice can
    lengthen the period of delay that is constitutionally tolerable.

[64]

In this case, there was a high societal interest
    in a trial on its merits. The seriousness of the offences weighs in favour of
    finding the delay was reasonable
.

[65]

For these reasons, I conclude the delay would
    also be justified by the transitional exceptional circumstance.

E.

DISPOSITION

[66]

The trial judge did not err in dismissing the
    appellants s. 11(b) application. I would dismiss the appeal.

Released:
June 09,
    2020

I.N.

A.
    Harvison Young J.A.

I
    agree I.V.B. Nordheimer J.A.

I
    agree B. Zarnett J.A.


