



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.P., 2021 ONCA 866

DATE: 20211203

DOCKET: C68899

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

J.P.

Respondent

Jeremy D. Tatum, for the appellant

Brian Snell, for the respondent

Heard and released orally:
    November 29, 2021

On appeal from the order of Justice Michael
    D. McArthur of the Superior Court of Justice, dated November 19, 2020, staying
    the charges against the respondent, with reasons reported at 2020 ONSC 6982.

REASONS FOR DECISION


[1]

This is a Crown appeal from a stay of
    proceedings arising out of a finding of s. 11(b)
Charter
delay. The
Charter
application proceeded on an agreement that the total delay was 35 months and 22
    days. The application judge concluded that three periods of time had to be
    subtracted from that total delay: (1) 31 days for a discrete exceptional event;
    (2) 88 days attributable to defence delay; and (3) another 39 days attributable
    to defence delay.

[2]

Bearing in mind these three periods of time, and
    in accordance with the principles set out in
R. v. Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631, the application judge subtracted 158 days from the
    total delay, leaving a delay of 30 months and 16 days. As the delay exceeded
    the
Jordan
ceiling by 16 days, the application judge stayed the
    proceedings.

[3]

The Crown alleges the application judge erred by
    failing to identify numerous periods of time as either defence delay or
    discrete exceptional circumstances. Given the conclusion we have reached on two
    of those alleged errors, we need not review them all.

[4]

First, there is no dispute that the application judge
    erroneously used June 30, 2018 as the start of a period of defence delay when
    he should have used June 20, 2018. On agreement, this accounts for another ten days
    of defence delay. That being so, on the application judges analysis, there is
    agreement that the
Jordan
ceiling was exceeded by only six days.

[5]

This leaves us to consider whether the application
    judge erred by failing to correctly characterize multiple other periods of time
    as either defence delay or discrete exceptional circumstances. The appellant
    maintains that, had these periods of time been properly characterized, any one
    of them would have resulted in a delay well below the
Jordan
ceiling.
    We focus on only one period of time that has this effect.

[6]

The application judge erred when he failed to
    identify a 65-day period of time, commencing August 14, 2019, as defence delay.
    The application judge said he could not conclude that it was defence delay because
    it was unclear from the record that the Crown was available during that period
    of time and, therefore, it was unclear whether the delay was caused solely by
    the defence.

[7]

The court in
Jordan
makes clear that
    there are two types of defence delay: (1) delay waived by the defence; and (2) delay
    caused solely by the conduct of the defence: at paras. 61, 63. With respect to
    the first type of delay, waiver, it may be explicit or implicit, but in either
    case, it must be clear and unequivocal:
Jordan
, at para. 61. In our
    view, the colloquy in court during the August 13, 2019 court appearance reveals
    an implicit, yet clear and unequivocal, waiver by the defence.

[8]

That appearance was devoted to setting a
    judicial pretrial date. The defence made clear that counsel could not be
    available to attend a judicial pretrial for at least 65 days. While the court said
    that it had much earlier dates available, and while the Crown said that there
    were at least two assignment courts available before that time, the defence was
    not available. So clear is this fact that the following exchange occurred:

The Court:   All right. And I think the record
    will clearly reflect that were going that far down the road because of
    [defence counsels] schedule.

[Agent for the Defence]:  Yes.

The Court:   This is a delay that lies at the
    feet of the Defence. I take it wed be able to offer them dates in August and
    early September?

Trial Coordinator:   Yes, thats correct, Your
    Honour.

The Court:   Yes. Okay. All right, so the
    records clear. So the request is that we set a [judicial pretrial] after what
    date?

[Agent for the Defence]:  October 16th?

No one at the August 13, 2019 hearing
    disputed the presiding judges characterization of the delay falling at the
    feet of the Defence. Most notably, the defence did not object to that
    characterization. The defence can only be taken to have agreed with its
    accuracy. This was an implicit, yet clear and unequivocal, waiver of over two
    months time that the application judge did not take into account.

[9]

It was an error of law to fail to characterize the
    time subsumed by the defence request for such a late judicial pretrial as defence
    delay. When this period of time is subtracted from the net delay, the resulting
    delay is well under the
Jordan
ceiling.

[10]

The respondent did not take the position that,
    even if the delay fell below the 30-month
Jordan
ceiling, it was
    nonetheless unreasonable delay.

[11]

Accordingly, the appeal is allowed, the stay of
    proceedings is set aside, and the matter is remitted to the Superior Court of
    Justice for trial.

Fairburn A.C.J.O.

K. Feldman J.A.

A. Harvison Young J.A.


