



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.C.P., 2018 ONCA 986

DATE: 20181206

DOCKET: C64315

Watt, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. C.-P.

Appellant

Frank Addario and Samara Secter, for the appellant

Frank Au and Molly Flanagan, for the respondent

Heard: June 26 and 27, 2018

On appeal from the convictions
    entered by Justice Faye E. McWatt of the Superior Court of Justice on March 3,
    2017, with reasons reported at 2017 ONSC 207, and from the sentence imposed on
    September 22, 2017, with reasons reported at 2017 ONSC 5518.

And on appeal from the ruling
    of Justice Faye E. McWatt of the Superior Court of Justice dated August 17,
    2017, with reasons reported at 2017 ONSC 4246, 390 C.R.R. (2d) 66.

And on appeal from the judgment
    of Justice Robert F. Goldstein of the Superior Court of Justice dated November
    8, 2016, with reasons reported at 2016 ONSC 6923, 371 C.R.R. (2d) 86.

By the Court:

A.

Overview

[1]

The appellant appeals from his convictions and seeks leave to appeal
    from his 20-month global custodial sentence for luring, sexual exploitation,
    and making, possessing and accessing child pornography in relation to two
    complainants, A.P. and M.M, contrary to ss. 172.1(2)(a), 153(1.1)(a), 163.1(2)(a),
    163.1(4)(a), and 163.1(4.1)(a) of the
Criminal Code
,
R.S.C. 1985, c. C-46
. The appellant was
    acquitted of charges involving a third complainant, M.B.

[2]

These convictions depended principally on the evidence of the
    appellants sexually explicit electronic text interactions with basketball
    players, one of whom he directly coached, when the players were 16 and 17 years
    old during the period from January 2012 to May 2013. In these text exchanges,
    under the pretext of a challenge or bet, the appellant invited the
    complainants and other teenaged players to send him photographs of their
    penises and videos of themselves engaged in various sexual acts. A.P. complied
    with the appellants requests and received money for doing so from the
    appellant; M.M. refused; M.B. sent photographs but possibly when he was 18
    years old. The appellant was also convicted of a brief touching offence in
    relation to A.P.

[3]

On October 13, 2016, almost 41 months after the charges were laid, the
    appellant brought an application to stay the proceedings under s. 24(1) of the
Canadian
Charter
of Rights and
    Freedoms
, claiming his rights under s. 11(b) of the
Charter
had been violated because of the unreasonable delay in bringing the matter to
    trial. The trial judge considered, as submitted by the defence, that the delay
    to the anticipated end of trial totalled about 43 months.

[4]

Following the analytical framework set out by the Supreme Court in
R. v.
Jordan
,
    2016 SCC 27, [2016] 1 S.C.R. 631, the application judge deducted 6 months and
    20 days of delay that he attributed to the defence, resulting in a net delay of
    just over 36 months (36 months and 10 days). He found that there were two
    discrete exceptional circumstances: an unexpected adjournment of a judicial
    pre-trial conference; and delay caused by confusion over a defence pre-trial application.
    The application judge deducted approximately three and one half months as a
    result, leaving a remaining delay of just under 33 months (32 months and 23
    days). As the charges were laid well before the release of
Jordan
on
    July 8, 2016, the application judge concluded that transitional exceptional
    circumstances applied and that societys interest in the trial of the serious
    charges on their merits outweighed the minimal prejudice that the appellant
    experienced. As a result, he found the delay was justified and dismissed the
    application on November 8, 2016.

[5]

The trial judge convicted the appellant on March 3, 2017. The trial
    judge acquitted the appellant of the charges against the third complainant,
    M.B., because the complainant might have been 18 years old when the alleged
    offences involving him occurred.
[1]
The appellant was sentenced on September 22, 2017 to 20 months in custody,
    concurrent on all counts.

[6]

The appellant advances several grounds of appeal. As we are satisfied
    that the appeal must be allowed because the application judge erred in
    dismissing the appellants s. 11(b)
Charter
application, it is
    unnecessary to consider the other grounds of appeal.

B.

Issues
    and Analytical Framework

[7]

The appellant submits that his s. 11(b)
Charter
right to be tried
    within a reasonable time was infringed because the delay in this case was
    unreasonable and the application judge erred in dismissing his application to
    stay the proceedings against him.

[8]

The applicable framework that the application judge set out in his
    reasons is not controversial. He followed the governing principles for
    determining whether the delay in this case infringed the appellants s. 11(b)
Charter
rights as articulated by the majority of the Supreme Court in
Jordan
, at
    paras. 46-117, and as described by this court in
R. v. Coulter
, 2016
    ONCA 704, 133 O.R. (3d) 433, at paras. 34-41. In his reasons, he correctly
    detailed the analytical steps that he was required to undertake:

Calculate the total delay, which is the period from the charge
    to the actual or anticipated end of trial (
Jordan
, para. 47).

Subtract defence delay from the total delay, which results in
    the Net Delay (
Jordan
, para. 66).

Compare the Net Delay to the presumptive ceiling (
Jordan
,
    para. 66).

If the Net Delay exceeds the presumptive ceiling, it is
    presumptively unreasonable. To rebut the presumption, the Crown must establish
    the presence of exceptional circumstances (
Jordan
, para. 47). If it
    cannot rebut the presumption, a stay will follow (
Jordan
, para. 47). In
    general, exceptional circumstances fall under two categories: discrete events
    and particularly complex cases (
Jordan
, para. 71).

Subtract delay caused by discrete events from the Net Delay
    (leaving the Remaining Delay) for the purpose of determining whether the presumptive
    ceiling has been reached (
Jordan
, para. 75).

If the Remaining Delay exceeds the presumptive ceiling, the
    court must consider whether the case was particularly complex such that the
    time the case has taken is justified and the delay is reasonable (
Jordan
,
    at para. 80).

If the Remaining Delay falls below the presumptive ceiling, the
    onus is on the defence to show that the delay is unreasonable (
Jordan
,
    para. 48).

The new framework, including the presumptive ceiling, applies
    to cases already in the system when
Jordan
was released (the
    Transitional Cases) (
Jordan
, para. 96).

The charges in the case were laid well before
Jordan
. If
    net delay is beyond the
Jordan
ceiling, then a court must determine
    whether transitional exceptional circumstances apply.

[9]

While the appellant argues that the court should consider the delay
    extending to his sentencing date for the purposes of this appeal, it is not
    necessary to do so. It is not contested that for the purposes of the
    application, the application judge appropriately measured delay from the date
    of the charge to the anticipated end of the trial:
Jordan
, at para. 47. At
    the time of the hearing of the application, the application judge considered that
    this delay amounted to about 43 months. Even after deducting the delay
    attributed to the defence by the application judge, there is no issue that the
    net delay was presumptively unreasonable because it exceeded the 30-month
    ceiling for cases tried in the Superior Court of Justice:
Jordan
, at
    para. 46. As we shall explain, even if delay was measured only to the
    anticipated end of trial, we conclude that the delay was unjustified and
    infringed the appellants s. 11(b)
Charter
rights.

[10]

The
    appellant contends that the application judge erred in his application of the
    governing
Jordan
principles. The main submissions pursued on appeal can
    be summarized as follows
[2]
:


i.

The application judge erred in finding that the adjournment of the exit
    judicial pre-trial conference was a discrete exceptional event and in reducing
    the net delay by 1 month and 17 days.


ii.

The application judge erred in his transitional exceptional circumstance
    analysis in the following ways:

a.

he assessed five
    months of the delay caused by lengthy Crown disclosure as a neutral intake
    period rather than attributing two and one half months to Crown delay;

b.

he treated the
    unavailability of the presiding judge for the scheduled exit judicial pre-trial
    as neutral when he should have characterized the delay caused by the resulting
    adjournment as institutional delay; and

c.

he only assessed
    the question of actual prejudice caused by the delay to the appellant and
    failed to consider inferred prejudice.

[11]

We
    examine each of these arguments in turn. While the application judge made
    several detailed findings about the delay in this case, it suffices to focus
    only on the application judges findings in relation to the issues pursued on
    appeal.

C.

Analysis


i.

Did the application judge err in
    finding that the adjournment of the exit judicial pre-trial conference was a
    discrete exceptional event and in reducing the net delay by 1 month and 17
    days?

[12]

As
    earlier noted, the application judge found that the net delay of 36 months and
    10 days exceeded the 30-month presumptive ceiling for cases tried in the
    Superior Court of Justice. The application judge determined the Crown had
    demonstrated that the adjournment of the exit judicial pre-trial from September
    2 to October 19, 2015 was a discrete exceptional event and reduced the delay by
    the resulting 1 month and 17 days.

[13]

On
    appeal, the Crown submits that the application judge properly characterized
    this period as a discrete event because the adjournment was unforeseeable, and
    it could not be reasonably remedied once it arose. The Crown was under the
    impression that the exit judicial pre-trial would proceed on September 2, 2015,
    given that the preliminary inquiry judge (the pre-trial judge) had twice
    indicated he was available on that day.

[14]

We
    agree that the application judge erred in his conclusion.

[15]

The
    delay in issue was not caused by the Crown or defence but by the systems
    inability to accommodate the parties when they were ready to proceed. The
    parties scheduled September 2, 2015 for the exit judicial pre-trial conference
    before the pre-trial judge. When the parties attended for the exit judicial pre-trial
    on September 2, they were informed that the pre-trial judge was not available because
    he was on vacation. The exit judicial pre-trial was adjourned to the next date
    when all parties were available  October 19, 2015.

[16]

The
    application judge erred in holding that the reason for the pre-trial judges
    unavailability was irrelevant. Because the delay exceeded the presumptive
    ceiling, the burden was on the Crown to prove that the circumstances of the
    courts unavailability were reasonably unforeseen or unavoidable and could not
    have reasonably been remedied:
Jordan
, at paras. 105, 112. There was no
    explanation for the pre-trial judges unexpected absence other than that he was
    on vacation. Further, there was no evidence that this was the kind of exceptional
    circumstance that should justifiably serve to excuse the delay, as suggested by
    way of illustration in
Jordan,
at para
.
72: for example, if a
    medical or family emergency had befallen the judge. Every actor has a
    responsibility to ensure that proceedings are carried out in a manner
    consistent with the
Charter
:
R. v.

Cody
, 2017 SCC 31,
    [2017] 1 S.C.R. 659, at para. 1. As
Jordan
instructs at para. 116, this
    includes the court:

Ultimately,
all participants in the justice system must work
    in concert to achieve speedier trials
. After all, everyone stands to
    benefit from these efforts. As Sharpe J.A. wrote in
R. v. Omar
, 2007
    ONCA 117, 84 O.R. (3d) 493:

The judicial system, like all other public institutions, has
    limited resources at its disposal, as do the litigants and legal aid.... It is
    in the interest of all constituencies  those accused of crimes, the police,
    Crown counsel, defence counsel,
and judges both at trial and on appeal

    to make the most of the limited resources at our disposal. [para. 32]. [Emphasis
    added.]

[17]

The
    application judge therefore erred in deducting an additional 1 month and 17
    days from the net delay to arrive at a remaining delay of just under 33 months
    (32 months, 23 days). The only discrete exceptional event was the two-month
    delay caused by the confusion over a defence pre-trial application. As such, in
    accordance with the application judges net delay calculation, this leaves a
    remaining delay of about 34 months and 10 days.

[18]

As
    the application judge noted in his reasons, given that the remaining delay
    exceeded the 30-month presumptive ceiling under the
Jordan
framework, he
    was required to go on to consider whether the case was particularly complex
    such that the time the case had taken was justified and the delay was
    reasonable:
Jordan
, at para. 80. In its submissions on the application, the
    Crown conceded that it was not a particularly complex case. While the
    application judges reasons do not explicitly address the complexity of the
    case, it is implicit that he accepted that the case was not complex because he
    concluded that the remaining delay was unreasonable.


ii.

Did the application judge err in
    his transitional exceptional circumstance analysis?

[19]

As
    the application judge correctly noted, the new framework in
Jordan
applies
    to cases already in the system:
Jordan
, at para. 95. However, in some cases,
    transitional exceptional circumstances may justify a presumptively unreasonable
    delay where the charges were brought prior to the release of
Jordan
:
Jordan
,
at
    para. 96;
Cody
, at para. 67. This should be the final step in the
    analysis, taken only where, as here, the deduction of discrete events does not
    reduce the delay below the presumptive ceiling and excess delay cannot be
    justified based on case complexity:
Cody
, at para. 67.

[20]

In
    determining whether there are applicable transitional exceptional circumstances,
    the Crown must satisfy the court that the time taken in the case is justified
    based on the parties reasonable reliance on the law as it previously existed
    under
R. v. Morin
, [1992] 1 S.C.R. 771:
Jordan
, at para. 96;
Cody
,
    at para. 72. This requires the court to undertake a contextual assessment of
    the delay, sensitive to the manner in which the previous framework was applied,
    and to the fact that the parties behaviour cannot be judged strictly, against
    a standard of which the parties had no notice:
Jordan
, at para. 96. Consideration
    of the seriousness of the offences, prejudice to the accused, and the parties
    general level of diligence may inform whether the parties reasonably relied on
    the previous state of the law:
Jordan
, at para. 96;
Cody
, at paras. 69-70; and
R.
    v. Gopie
, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 119.

[21]

The
    relevant considerations that inform the transitional exceptional circumstance
    analysis are well-recognized. They include: (i) the complexity of the case;
    (ii) the period of delay in excess of the
Morin
guidelines; (iii) the
    Crowns response, if any, to any institutional delay; (iv) the defence efforts,
    if any, to move the case along; and (v) prejudice to the accused:
R. v. Manasseri
,
    2016 ONCA 703, 132 O.R. (3d) 401, at para. 321, leave to appeal refused, [2016]
    S.C.C.A. No. 513;
Gopie
, at para. 178; and
R. v. Williamson
, 2016
    SCC 28, [2016] 1 S.C.R. 741 (
Williamson (SCC)
), affg 2014 ONCA 598,
    314 C.C.C. (3d) 156 (
Williamson (ONCA)
).

[22]

While
    transitional exceptional circumstances may apply to justify unreasonable delay,
    the s. 11(b) rights of accused persons cannot be held in abeyance while the
    system adjusts and responds to the
Jordan
framework:
Jordan
, at
    paras. 96, 98. This reality requires the court to apply the transitional
    exceptional circumstance analysis contextually, and to appreciate that this
    analysis occurs within the
Jordan
structure and not in an analytical
    vacuum. As the majority explains at para. 98 of
Jordan
:  [T]he delay
    might be unreasonable even though the parties were operating under the previous
    framework. The analysis must always be contextual.

[23]

In
    this case, almost the entire proceedings leading up to the appellants s. 11(b)
Charter
application pre-dated the release of
Jordan
. The Crown therefore had to
    show that the 34 months and 10 days of remaining delay was justified in light
    of its reliance on the previous state of the law under
Morin
.

[24]

The appellant submits that the Crown failed to meet its onus and
    that the application judge erred in his analysis of the factors that were
    relevant under the previous
Morin
framework, including the former
    guidelines about institutional delay of 8 to 10 months for matters in the
    Ontario Court of Justice and a further 6 to 8 months after committal for trial in
    the Superior Court of Justice:
Jordan
, at paras. 30, 96;
Morin
,
    at p. 799. In particular, the appellant takes issue with the application
    judges treatment of delay occasioned by the lengthy period of Crown
    disclosure, the adjournment of the exit judicial pre-trial conference, and his
    failure to consider inferred prejudice to the appellant caused by the delay.

a)

Crown disclosure delay

[25]

The
    appellant submits that the application judge erred in finding that the lengthy
    period of the Crown disclosure in this case amounted to a transitional exceptional
    circumstance.

[26]

The
    application judge explained his reasoning as follows:

In my view, given the voluminous disclosure, and taking a
    somewhat arbitrary view of it, 5 months ought to be considered as intake or
    neutral. As I understand it the police seized numerous electronic devices that
    had to be searched, the material downloaded and analyzed (including thousands
    of text messages and photographs), and then organized for disclosure purposes.
    Given the nature of the case, the police did not have the luxury of doing that
    work pre-arrest.  Some allowance must be made for that.

[27]

We
    agree that the application judge erred in inflating the neutral intake period to
    five months.

[28]

There
    is no fixed or usual period of intake:
Morin
, at pp. 792-93;
R. v.

Steele
, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 16. Rather, intake
    periods can vary in length depending on various factors which may include the
    complexity of the case:
R. v. Lahiry
, 2011 ONSC 6780, 109 O.R. (3d) 187,
    at para. 19; and
Morin
, at p. 792;
R. v. Khan
, 2011 ONCA 173, 270
    C.C.C. (3d) 1, at para. 32, leave to appeal refused, [2011] S.C.C.A. No. 195. While
    courts have recognized lengthier intake periods in child pornography cases, given
    that they are frequently complex and that police investigations often occur
    post-charge (see generally
R. v. St. Amand
, 2017 ONCA 913, 358 C.C.C.
    (3d) 226, at paras. 87-88 and
R. v. Stilwell
, 2014 ONCA 563, 313 C.C.C.
    (3d) 257, at para. 39), courts should nevertheless look to the record in each
    case to assess what is reasonably attributable as neutral intake time. For
    example: see
Steele
, at paras. 15-17.

[29]

In
    this case, the application judge erred by simply accepting that child
    pornography cases are necessarily complex and therefore require a long intake
    period. As a general proposition, not all cases involving voluminous disclosure
    are complex. The question to be determined in each case is whether the case is
    sufficiently complex such that the delay is justified:
Jordan
, at para.
    77;
Cody
, at para. 65. As such, the application judge should have
    examined more closely the specific circumstances of this case when attributing
    periods of time to intake.

[30]

A
    close review of the record reveals that there was no need for an extended
    intake period of five months. The appellant had retained counsel upon his
    arrest on May 29, 2013 and was represented by that counsel at his bail hearing
    on May 30, 2013.
[3]
The appellants first appearance was on July 19, 2013, but no disclosure was
    forthcoming. Initial disclosure was made on August 23, 2013. Defence counsel
    sent a letter to the Crown on September 13, 2013 seeking further specific
    disclosure. Additional written requests for this disclosure were sent on
    September 17, October 17, and November 7, 2013, but for months, there was no
    response to defence counsels letters. Defence counsel also informed the
    presiding judicial officer on October 4, 2013 that he had sent the Crown a letter
    seeking further disclosure. On the appellants fifth appearance in the Ontario
    Court of Justice, on November 8, 2013, counsel indicated that he had recently
    received disclosure
[4]
and required time to review it. The record shows that the defence proactively
    sought further disclosure with an interest in moving things along. While the
    case involved voluminous disclosure, there is no sufficient explanation on the
    record for the lengthy delay in making that disclosure.

[31]

The
    Crown argues that an intake period of five months is entirely appropriate for a
    case involving the amount of data extraction and number of witnesses in this
    case and falls squarely within a similar spectrum for intake as set out in
St.
    Amand
.

[32]

St.
    Amand
is entirely distinguishable from the present case. It was a child
    pornography case involving 3,900 unique images that had to be extracted by way
    of extensive forensic examination after the charges were laid. This court
    upheld the trial judges finding that the neutral intake period was 11.5 months
    based on the particularly complex circumstances in that case, which are not
    present here:

First, the intake period of delay. Recall that the sentencing
    judge identified 11.5 months (April 17, 2013 to March 31, 2014) as neutral
    inherent delay. In doing so, he addressed the complexity of a child pornography
    prosecution, holding, at para. 38:

That the initial intake period was longer than might have
    been expected is explained, in part, by the nature of the charge and the fact
    that police analysis of the computer files in the accused's hard drive is a
    tedious, time consuming process, and it takes place, for the most part,
after
the
    charge is laid. As a result, Crown disclosure is delayed, as are Crown-defence
    discussions and negotiations. There is some appellate recognition of the
    lengthier post-charge investigation process in child pornography cases.
    [Emphasis in original; Citation omitted.]

This was a proper and necessary consideration under the
Morin
framework.
    There can be no dispute that much of the time consuming forensic investigation
    in a child pornography case occurs after the charge, leading to a lengthier
    intake period:
R. v. Stilwell
,
2014 ONCA 563
,
324 O.A.C. 72
[at paras. 87-88].

[33]

In
    the present case, the focus of the Crowns case was on a relatively limited
    number of electronic text messages, sexually explicit photographs and videos,
    and the statements of 13 witnesses, including the 3 complainants.
[5]
While the Crown contended that
    thousands of text messages formed part of the disclosure, there was no evidence
    as to the content of all of those messages and whether the messages were
    duplicates. Moreover, while the police conducted a technical analysis to
    extract relevant images and videos from the appellants electronic devices, this
    case was markedly different from many child pornography cases where the accused
    has downloaded hundreds of thousands of images and videos onto a computer.
    Finally, in this case, the police began investigative work and collected evidence
    from some of the complainants before the charges were laid.

[34]

As
    a result, we agree with the appellant that the application judge erred in
    attributing five months to the neutral intake period and that two and one half months
    is the appropriate attribution. The remaining two and one half months should be
    characterized as Crown delay.

b)

Adjournment of the exit judicial
    pre-trial

[35]

The
    appellant argues that the application judge erred in characterizing as neutral delay
    the adjournment of the exit judicial pre-trial caused by the pre-trial judges
    unavailability.

[36]

As
    previously noted, the Crown accepts the application judges characterization of
    this period as neutral delay.

[37]

In
    our view, the application judge erred.

[38]

Even
    under the former
Morin
analysis, this delay would have been treated as
    institutional delay. Institutional delay begins to run when counsel are ready
    to proceed but the court is unable to accommodate them:
R. v. Tran
, 2012
    ONCA 18, 288 C.C.C. (3d) 177, at para. 32. That was the case here: the parties
    were ready to proceed on September 2, 2015, but the court was unable to
    accommodate the exit judicial pre-trial on that day. As a result, the matter
    was adjourned to October 19, 2015.

[39]

Therefore,
    the application judge erred in treating the 1 month and 17 days as neutral
    delay.

c)

Total institutional delay under the
Morin
analysis

[40]

The
    application judge calculated a total of 11.75 months of Crown and institutional
    delay in the Ontario Court of Justice and just about 8 months of institutional
    delay in the Superior Court of Justice. Therefore, according to his
    calculations, the combined Crown and institutional delay for the proceedings
    totalled about 19.75 months, which exceeds the 14 to 18 months under the
Morin
guideline by 1.75 months.

[41]

However,
    for the reasons outlined above, the combined Crown and institutional delay
    should have been about 23.75 months, calculated as follows: approximately 15.75
    months of Crown and institutional delay in the Ontario Court of Justice and 8
    months in the Superior Court of Justice.
[6]
This combined Crown and institutional delay exceeds the high end of the
Morin
guideline by about 5.75 months.

d)

Inferred prejudice

[42]

The
    appellant submits that the application judge also erred in his analysis of
    prejudice in this case, particularly because he failed to consider and give
    effect to inferred prejudice.

[43]

We
    agree.

[44]

As
    we have said, prejudice continues to play an important role in the
Jordan
transitional
    circumstance analysis:
Cody
, at paras. 69-71;
St. Amand
, at para.
    108. Delay may adversely affect an accuseds liberty, security of the person,
    and fair trial interests:
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at
    para. 30. While prejudice from delay may be actual, it may also be inferred from
    the length of delay even in the absence of evidence of specific prejudice:
Morin
,
    at p. 801;
Godin
, at para. 31; and
R. v. Pyrek
, 2017 ONCA 476,
    349 C.C.C. (3d) 554, at para. 29. As Sopinka J. noted in
Morin
, at p.
    801, the longer the delay, the more likely that an inference of prejudice will
    be drawn. Therefore, prejudice must not be considered separately from the
    length of the delay itself:
Godin
, at para. 31.

[45]

The
    application judge erred by failing to consider and give any weight to the
    inferred prejudice that the appellant experienced based on the length of the
    delay in bringing him to trial:
Williamson (ONCA)
, at paras. 54-57;
Steele
,
    at paras. 28-29. The application judge analyzed the issue of prejudice only in
    terms of actual prejudice. However, as this court recognized in
Williamson
    (ONCA)
, at para. 54, [P]roof of actual prejudice is not invariably
    required to establish a s. 11(b) violation. While the application judge
    acknowledged that the appellant suffered prejudice, he found the appellant did
    so mostly because of the nature of the charges. The application judge failed to
    consider [translation] that the mere passage of time causes prejudice to the
    accused:
R. c. Huard
, 2016 QCCA 1701, at para. 28;
R. c. Rice
,
    2018 QCCA 198, 44 C.R. (7th) 83, at para. 20. Moreover, this court has noted that
    when an accused must wait almost three years for trial, even in relatively
    complex cases, it may be proper to infer significant prejudice:
Williamson
    (ONCA)
, at paras. 55-57; see also
R. v. Ralph
, 2014 ONCA 3, 313
    O.A.C. 384, at para. 16, leave to appeal refused, [2014] S.C.C.A. No. 262.

[46]

In
    the present case, the appellant waited over three years for his trial in a case
    that was not particularly complex. There was a total delay of about 43 months in
    bringing the appellant to trial on serious offences. After deduction of defence
    delay and discrete events, the remaining delay in the
Jordan
framework
    is about 34 months and 10 days. Under the transitional exceptional circumstance
    analysis, just over half of the total delay of about 43 months is attributable
    to combined Crown and institutional delay (about 23.75 months).

[47]

The
    delay in this case is comparable to that in
Steele
. There, the trial
    judge similarly failed to appropriately weigh the inferred prejudice that the
    accused suffered as a result of the 35-month delay in bringing him to trial. Of
    that delay, 26 months were attributable to Crown and institutional delay. Rosenberg
    J.A. held that, despite the seriousness of the offences and societys interest
    in a trial on the merits, the length of the delay and the unsatisfactory
    explanation for it were simply inexcusable. He therefore substituted a stay of
    the proceedings:
Steele
, at paras. 34-36.

[48]

In
    our view, the application judge erred in finding the prejudice caused by the
    delay in this case to be insignificant. As this court observed in
Williamson
    (ONCA)
, at para. 57, [t]he stigma of being under a public cloud should not
    be lightly dismissed.

[49]

The
    absence of haste and the accuseds general level of diligence may inform the
    courts assessment of prejudice:
Cody
, at para. 70;
Rice
, at
    para. 202; and see also
Williamson (ONCA)
, at para. 67. In the present
    case, there is no evidence to suggest that the defence acted without haste or
    diligence. As discussed above, the defence made repeated requests for further
    disclosure from the Crown in the Ontario Court of Justice.

[50]

In
    failing to consider inferred prejudice, the application judge incorrectly
    concluded that the balance weighed in favour of the genuine public interest in
    a trial on the merits:
Steele
, at para. 33.


[51]

Recall
    that the transitional exceptional circumstance analysis operates within the
Jordan
structure.
Jordan
instructs that the presumption of prejudice to the
    accused because of unreasonable, unjustified delay still looms large in the
    analysis. As the majority stated at para. 81:

Perhaps most significantly, the absence of prejudice can in no
    circumstances be used to justify delays after the ceiling is breached. Once so
    much time has elapsed, only circumstances that are genuinely outside the
    Crown's control and ability to remedy may furnish a sufficient excuse for the
    prolonged delay. [See also
Manasseri
, at para. 378.]

[52]

Here,
    the delay exceeded the presumptive ceiling under
Jordan
and the 14 to 18
    months under the
Morin
guideline. In these circumstances, there is no
    doubt that the appellant suffered prejudice from the prolonged exposure to
    criminal proceedings resulting from the delay:
Godin
, at para. 34.

[53]

The
    purpose of s. 11(b) is to expedite trials and minimize prejudice, not to avoid
    trials on their merits:
Morin
, at p. 802. While the offences were very
    serious in this case, they are outweighed in our view by the inferred prejudice
    caused to the appellant by the excessive and unreasonable delay in bringing him
    to trial. Applying a contextual analysis, sensitive to the manner in which the
Morin
framework previously operated, we conclude that the application judge erred in
    holding that transitional exceptional circumstances justified the delay in this
    case.

D.

CONCLUSION

[54]

Given
    the legal errors made by the application judge, his resulting conclusion that
    the delay was reasonable cannot be sustained. As we have explained, after
    deducting the correct amount of time for the delay caused by the adjournment of
    the exit judicial pre-trial conference, the remaining delay is about 34 months
    and 10 days, which exceeds
Jordan
s presumptive ceiling. There are no
    transitional exceptional circumstances that justify the delay in this case.
    Even under the
Morin
framework, the delay was unreasonable.

E.


Disposition

[55]

For
    these reasons, we allow the appeal, set aside the convictions and sentence, and
    stay the proceedings against the appellant.

Released: December 6, 2018

David Watt J.A.

G. Pardu J.A.

L.B. Roberts J.A.





[1]

In relation to M.B., the appellant was charged with luring for
    the purpose of making child pornography (s. 172.1) and making child pornography
    (s. 163.1(2)).  For the purposes of those sections, child is defined as a
    person who is or appears to be under the age of 18 years.



[2]
On appeal, the appellant does not contest the
    application judges treatment of the two-month delay between May 6, 2015 and
    July 6, 2015, caused by the confusion over the
Dawson
application: see
R.
    v. Dawson
(1998), 39 O.R. (3d) 436 (C.A.). However, the appellant does
    contest defence counsels concession of the 1 month and 29-day period between
    March 2 to April 30, 2015, and the application judges characterization of this
    period, as defence delay. While raised as an issue on appeal, it is not
    necessary to deal with this argument given our determination that the delay,
    even including the reduction of attributed defence delay, was unreasonable in
    this case.



[3]
The bail hearing was scheduled to commence on May 29, 2013, but the judge did
    not commence the bail hearing on that day due to insufficient time. It was
    scheduled to begin the next day, May 30, 2013.



[4]
From the transcript, dated November 8, 2013, it appears that the appellant
    received three discs of disclosure a week before the November 8 appearance,
    which contained disclosure he had not requested in his previous letters. It
    appears that the Crown responded to the letter sent on November 7, 2013 that
    sought precise disclosure.



[5]
The transcript reveals that there were duplicates of
    sexually explicit photographs in this case. The trial judge found that A.P. had
    provided approximately 12-13 discrete sexually explicit photographs and 5
    videos to the appellant, and M.B. provided approximately 3 discrete sexually
    explicit photographs. Of the 10 witnesses (not the complainants), the Crown
    filed as part of the exhibits a total of approximately 5 discrete sexually
    explicit photographs provided by 2 witnesses, who were over 18 years old when
    the photographs were sent to the appellant.



[6]

To reiterate, two and one half months should have been
    attributed to the Crown in the Ontario Court of Justice as the application
    judge erred in attributing five months to neutral intake time. Further, 1 month
    and 17 days should have been attributed to institutional delay in the Ontario Court
    of Justice because the application judge mischaracterized the delay related to
    the adjournment caused by unavailability of the pre-trial judge as neutral.


