



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adu-Bekoe, 2021 ONCA 136

DATE: 20210304

DOCKET: C67002

Feldman, Lauwers and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Akil Adu-Bekoe

Appellant

Chris Rudnicki, for the appellant

Tracy Kozlowski, for the respondent

Heard: February 16, 2021 by
    video conference

On appeal
    from the conviction entered on June 27, 2018, and the sentence imposed on February
    26, 2019, by Justice Shannon B. McPherson of the Ontario Court of Justice.

Lauwers
    J.A.:

[1]

Some post-verdict sentencing delay often occurs in criminal
    cases. Such delay can violate an offenders right to be tried within a
    reasonable time under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
. In
R. v.
    Charley
, 2019 ONCA 726, 147 O.R. (3d) 497,
per
Doherty J.A., this court laid out the governing principles.

[2]

Charley
set the presumptive ceiling for
    post-verdict sentencing delay at five months, with certain exceptions. Doherty
    J.A. said, at para. 87: I stress that five months is not the norm, and should
    not be allowed to become the norm. He explained: five months is the point at
    which the delay is sufficiently long that it is regarded as presumptively
    unreasonable for the purposes of s. 11(b). He added: The onus falls to the
    Crown to justify the delay.

[3]

The court also held that the principles set out in
R.
    v. Jordan
,

2016 SCC 27, [2016] 1 S.C.R.
    631, governing
pre-verdict delay should be applied, with necessary
    modifications, to post-verdict sentencing delay. Doherty J.A. noted that exceptional
    circumstances could justify delay above the presumptive ceiling, including a
    dangerous offender application as a discrete event, and including the
    transitional exceptional circumstance for cases in the system before the
    introduction of the new ceiling:
Charley
, at
    paras.
98, 100,
105.

[4]

In
R. v. Hartling
, 2020 ONCA
    243, 150 O.R. (3d) 224,
per
Benotto J.A., the
    court found that the usual remedy for a breach of the presumptive ceiling for
    sentencing delay was not a stay of prosecution but a mitigation of sentence.

[5]

The trial judge did not have the benefit of this courts decisions in
Charley
and
Hartling
.
    The argument before us took these cases into account. Applying the principles
    in
Charley
and
Hartling
,
    the post-verdict delay in this case was not unreasonable.

Facts and Decision Below

[6]

The appellant was charged on March 28, 2017, tried from June 4-6,
    2018, and convicted on June 27, 2018 of robbery with a firearm contrary to s.
    344(1)(a), and forcible confinement contrary to s. 279(2), of the
Criminal Code
,
R.S.C. 1985, c.
    C-46. The total time from charge to conviction was 14 months and 29 days. There
    was no defence delay; defence concessions simplified the proceedings.

[7]

The trial judge detailed the delay in sentencing. She noted that
    the Crown advised the defence
of the possibility of a
    dangerous offender application

in
    June 2017,
during
the judicial pretrial phase of
    the case, and confirmed its intention after the conviction on June 27, 2018.
    The Crown applied under s. 752.1 for an assessment hearing. On July 11, 2018, a
    hearing date was set for October 4, 2018. The trial judge noted that the first
    date available to the Crown and the court was July 24, 2018, but the defence
    was not available on that date.

[8]

The trial judge completed the assessment hearing
    on October 4, 2018 and dismissed the dangerous offender application on November
    5, 2018. The sentencing hearing was set for January 28, 2019 and a pre-sentence
    report was ordered.

[9]

On January 21, 2019, the appellant brought an application for a
    stay of the prosecution on the basis that his s. 11(b)
Charter
right to be tried within a reasonable time had been breached by the delay in
    sentencing. The application was heard on January 28, 2019 and dismissed on
    February 14, 2019. The appellant was sentenced to nine-years imprisonment on
    February 26, 2019.

[10]

The trial judge calculated a total sentencing
    delay of seven months and one day. She took the view that this total
should be reduced by two months and ten days on account of the defences
    unavailability for the dangerous offender assessment, and by one month and one
    day for the dangerous offender application itself
. Deducting
    a total of 3 months and 11 days, she found
the
    remaining post-verdict delay to be 3 months and 20 days. The trial judge
    concluded that this delay was not unreasonable.


The Positions of the Parties

[11]

The
    appellant submitted that the five-month presumptive ceiling was breached by the
    post-verdict sentencing delay. He argued that the trial judge mischaracterized two
    months and ten days as defence delay, and that the Crowns application for a dangerous
    offender designation was frivolous. The possible validity of the second
    argument was acknowledged by Doherty J.A. in
Charley
,
    at para. 102. The appellant argued that because the sentencing delay was
    excessive and unjustified, the sentence should be reduced, and proposed a
    reduction of 10 percent or 11 months in the sentence, citing
Hartling
.

[12]

The
    Crown submitted that the dangerous offender application was not frivolous, so
    that, following
Charley
, at para. 100, it must
    be treated as a discrete event and an exceptional circumstance. Accordingly,
    the time taken for the application is to be deducted from the net sentencing delay,
    as
Charley
prescribes at para. 104. The Crown
    also argued that the transitional exceptional circumstance for cases in the
    system before the introduction of the new presumptive ceiling, recognized in
Charley
, at para. 105, should be applied.

The Post-Verdict Sentencing Delay

[13]

The
    presumptive ceiling for post-verdict sentencing delay operates in the same
    manner, and with the same qualifications as the pre-verdict ceilings set out
    in
Jordan
:
Charley
,
    at para. 128. Under the
Jordan

framework for pre-verdict delay, the total delay is measured
    from the charge to the actual or anticipated end of trial:
Jordan
, at para. 49. In fixing the presumptive ceiling
    for sentencing, Doherty J.A. set the relevant time as the time between verdict
    and sentencing, at para. 84. On the facts in
Charley
,
    at para. 95, he calculated the total post-verdict delay from the date of the
    finding of guilt to the anticipated date of sentence. Accordingly, in line with
Charley

and applying
    the
Jordan

framework, total
    sentencing delay should be calculated from the date of the verdict to the
    actual or anticipated date of the sentence.

[14]

The
    trial judge calculated a total delay of seven months and one day, from the date
    of the verdict, June 27, 2018, to the date on which the s. 11(b) application
    was heard, January 28, 2019. The total delay in this case should instead be
    calculated from the date of the verdict, June 27, 2018, to the date on which
    the appellant was sentenced, February 26, 2019. The total post-verdict sentencing
    delay is therefore just under eight months.

[15]

Delays
    attributable to the defence must be subtracted from the total delay:
Jordan
, at para. 60; and see
Charley
,
    at para. 95. The Crown and the trial judge were available to commence the s.
    752.1 hearing on July 24, 2018, but the defence was not. That hearing took
    place on October 4, 2018. The trial judge attributed the period of delay between
    those two dates, two months and ten days, to the defence.

[16]

However,
    this period of delay was not properly attributable to the defence. In setting
    the date for the s. 752.1 hearing, the defence gave available dates in July and
    August 2018, and specifically said: I would take an August date if my friend
    can accommodate it. The trial Crown said: With respect to an August date, I
    think that will be difficult at this point.

[17]

This
    was not a case where the Crown was ready to proceed and the defence was not:
Jordan
, at para. 64. The appellant argues, and the Crown
    does not appear to contest, that the Crown was not realistically available to
    argue the application on July 24, 2018. There is no indication of any other dates
    between July and October 2018 on which the Crown and the court were available
    but the defence was not. On this basis, this period of delay cannot fairly be
    attributed to the defence.

[18]

No
    other period of delay was attributed to the defence. With no defence delay to subtract,
    the net delay is just under eight months, exceeding the five-month ceiling by
    three months. This delay is presumptively unreasonable, a presumption that can
    only be rebutted by exceptional circumstances:
Jordan
,
    at para. 68. There are two potentially relevant exceptional circumstances in
    this case: the dangerous offender application, and the transitional exceptional
    circumstance.

(1)

The Dangerous Offender Application

[19]

A
    dangerous offender application is properly characterized as an exceptional
    circumstance:
Charley
, at para. 98. However,
    where that application is frivolous, the Crown cannot rely on it as an
    exceptional circumstance to reduce the net delay:
Charley
,
    at para. 102.

[20]

The
    appellant argues that the dangerous offender application in this case was
    frivolous. That argument fails on the trial judges own assessment. She said:

While the Crown was ultimately unsuccessful in
    their endeavor for the assessment, and they relied on rather generic material,
there is nothing to suggest that such an
    application viewed in hindsight was an inappropriate or an abusive use of Crown
    discretion
. Furthermore, while the Supreme Court
    of Canada meant to change the culture of complacency in criminal court by
    urging all parties to make meaningful progress in a case, I do not read the
    decision to require either party to perform to a standard of perfection or to
    only litigating successful applications. [Emphasis added.]

[21]

In my view,  the dangerous offender application
    was clearly not frivolous. To be clear, I should not to be taken as approving
    the trial judges approach to the evidence of dangerousness. To the contrary, the
    pattern of violence exhibited by the appellant could have formed the basis of the
    dangerous offender designation, consistent with the principles in
R. v. Hogg
, 2011 ONCA 840, at para. 40.
    Here, the trial judge identified a pattern of escalating violence. I disagree
    with her statement that, necessarily, a pattern of behaviour is something more
    than a history of violent criminal offending. A pattern could exhibit
    hallmarks, but it need not. The key question is whether the offender would
    likely reoffend in the same way  by excessive violence  in the future.

[22]

In
Charley
, at para. 100, Doherty J.A. attributed the time between the
    verdicts and the dismissal of the s. 752.1 application to the exceptional
    circumstance of the dangerous offender application. Here, the date of the
    verdict was June 27, 2018, and the s. 752.1 application was dismissed on
    November 5, 2018. A period of four months and eight days passed
    between these dates.

[23]

This delay, if subtracted from the net delay of just
    under eight months, would bring the remaining delay well within the five-month
    ceiling. However, Doherty J.A. notes, in
Charley
, at para. 98, that even where delay can be attributed to an
    exceptional circumstance, the Crown has an obligation to mitigate the delay. The
    appellant submitted that the Crown failed to do so in this case and argues that
    the Crown delayed collecting material on the application and providing it to
    the defence, even though the sparse materials the Crown ultimately relied upon
    were available before conviction.

[24]

As noted, the trial judge attributed much of the
    delay prior to the dismissal of the s. 752.1 application to the defence and found
    that the application caused a not particularly long delay of one month and
    one day. In
Charley
,
    at paras. 97 and 99, Doherty J.A. found that the Crown acted reasonably where the
    s. 752.1 application caused a five-month delay. But in
Charley
, unlike in this case, the Crown
    began to assemble the application materials before the verdict and relied upon
    material that was not available until after the verdict:
Charley
, at para. 97.

[25]

The reasonable time requirement for the
    preparation of the s. 752.1 application falls between one and five months. I
    would set the reasonable time requirement, given the sparse materials the Crown
    compiled, at two months. It took just over a month for the trial judge to
    decide the application. Three months can therefore be attributed to the
    application and deducted from the net delay for the exceptional circumstance of
    the dangerous offender application in this case.

[26]

This leaves a remaining post-verdict sentencing
    delay of just under five months, which is just below
Charley
s presumptive ceiling. This
    delay, while perhaps unfortunate, did not breach the appellants s. 11(b)
Charter
right.

(2)

The Transitional Exceptional Circumstance

[27]

As noted in
Charley
, at para.
    105, the transitional exceptional circumstance identified by the Supreme Court
    of Canada in
Jordan
, at paras. 95-104, applies
    with necessary modifications to post-verdict sentencing delay. The transitional
    exceptional circumstance would apply in this case because the post-verdict delay
    in sentencing occurred before the release of this courts decision in
Charley
. Because the remaining delay does not exceed the
    presumptive ceiling, there is no need to rely on the transitional exceptional
    circumstance in this case.

Disposition

[28]

I
    would dismiss the appeal.

Released: March 4, 2021 K.F.

P.
    Lauwers J.A.

I
    agree. K. Feldman J.A.

I
    agree. G.T. Trotter J.A.


