



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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.K., 2021 ONCA 256

DATE: 20210426

DOCKET: C66282

van Rensburg, Benotto and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.K.

Appellant

Michelle Psutka, for the appellant

Tracy Kozlowski, for the respondent

Heard: December 1, 2020 by video conference

On appeal from the conviction entered by
    Justice Kevin B. Phillips of the Superior Court of Justice on October 25, 2017,
    with reasons reported at 2017 ONSC 6411, and the sentence imposed on November
    21, 2018.

van Rensburg J.A.:

A.

Overview

[1]

J.K. appeals his conviction for sexual assault and he seeks leave to
    appeal his sentence of two years in prison.

[2]

The charge arose out of a sexual encounter between the complainant and
    the appellant. The complainant was highly intoxicated and had no memory of the
    assault. The appellant admitted that there was sexual contact, which he said
    was consensual, but he denied having had intercourse with the complainant.

[3]

The trial judge concluded that the offence was made out beyond a
    reasonable doubt. He accepted the evidence that the appellant had told others
    that he had sexual intercourse with the complainant, and that this was
    corroborated by evidence that a tampon had become lodged in the complainants
    vagina, something she discovered in the days after the encounter. The trial
    judge accepted that the appellant proceeded knowing that the complainant was
    incapable of consenting and therefore was not consenting, or that the appellant
    was reckless as to whether or not she was capable of consenting and consented.

[4]

The trial judge also dismissed an application under the
Canadian
    Charter of Rights and Freedoms
that the appellant brought post-conviction.
    Among other things, he submitted that pre-conviction delay of 39 months (that
    focused on a nine-month delay between the date he failed to attend court
    pursuant to a promise to appear and his re-arrest under a bench warrant), and a
    post-conviction delay of 13 months in connection with the time that it took to
    obtain a
Gladue

report violated his right under s. 11(b) to be
    tried within a reasonable time.

[5]

The appellant raises two issues on his conviction appeal. First, he says
    that the trial judge erred in his treatment of the evidence that a tampon had
    become lodged in the complainants vagina when he rejected a cause other than
    sexual intercourse for the lodged tampon as being physically impossible. The
    appellant seeks to introduce fresh evidence on this issue. Second, he asserts
    that the trial judge erred in dismissing his
Charter

application
    and refusing a stay of proceedings based on the pre-conviction delay.

[6]

On his sentence appeal the appellant contends that the trial judge erred
    by failing to find a breach of s. 11(b) post-conviction and in failing to take
    the delay into consideration in his sentence. The appellant also seeks a
    reduction in sentence or a stay of execution of his sentence based on fresh
    evidence.

[7]

For the reasons that follow, I would not admit the fresh evidence on the
    conviction appeal, and I would dismiss the conviction appeal. I would admit the
    fresh evidence on the sentence appeal, grant leave to appeal sentence, and
    dismiss the sentence appeal.

B.

Facts

[8]

The charge arose out of a sexual encounter between the complainant and
    the appellant when they were attending a marksmanship competition in Ottawa with
    other military personnel. The complainant was the only female attending the
    competition on her team, which included the appellant. Members of the team were
    consuming alcohol together in the appellants tent on the evening of the
    incident. The complainant, who was drinking heavily, was found by two other
    teammates who carried her to her tent.

[9]

The complainant testified that her last memory of that night was
    finishing a bottle of whisky. Her next memory was waking up in the morning in
    her tent, realizing that she was naked from the waist down, not being able to
    find her underwear, and feeling her vagina was sore and being unable to find
    the tampon she had inserted the day before. Later in the week the complainant
    spoke to a teammate, F.N., who told her that the appellant had her underwear,
    and that he had shown it to the other men and was talking about her. The
    complainant continued to have discomfort in her vaginal area when she returned
    home, and she saw a nurse who extracted a tampon that was lodged in her vagina.

[10]

F.N.
    testified that the morning after the incident, the appellant told him that he
    had had sex with the complainant the night before, and that the appellant had
    shown him the complainants underwear and described the position the
    complainant was in during the sexual intercourse. F.N. testified that he had
    told the complainant that the appellant had her underwear and was bragging
    about having had sex with her in the tent. Another teammate, C.N., testified
    that on the night in question, he and another man found the complainant passed
    out at a picnic table. They carried her to the bed in her tent and removed her
    sweater because she had vomited on it but did not remove any other clothing.
    C.N. eventually left the tent to go to the lounge. The next morning, when C.N.
    went to the appellants tent, he saw the appellant sleeping with a pair of
    womens underwear in his hands.

[11]

The
    appellant testified that he had gone to the complainants tent that night to
    get a PowerAde sports drink that she had promised him. He knocked, and after
    the complainant responded he entered and approached her bed. The appellant
    testified that the complainant had started to rub his crotch over his clothing,
    then pulled out his penis and stroked it. The complainant was putting her
    fingers inside her vagina. When she said the name of another teammate, he was
    surprised and felt awkward. He left the tent, and as he did so, he noticed that
    the complainants underwear was caught on his shoe. He did not return it
    because he felt awkward about the situation. The appellant admitted that the
    next day, he took out the underwear to brag, and that he told the other men
    that he had fooled around with the complainant. He denied that he had sexual
    intercourse with the complainant.

C.

The Trial Judges Reasons for Conviction

[12]

The
    trial judge accepted most of the complainants evidence, as well as the
    evidence of F.N. and C.N. that is set out above. He did not accept the
    appellants account of the events. The appellants evidence was inconsistent
    with the evidence of other witnesses, and it contained inconsistencies within
    itself. The trial judge concluded that the complainants self-pleasuring would
    not have caused her tampon to be lodged in her vagina such that a nurse had to
    remove it.

[13]

The
    trial judge concluded that the Crown had proved beyond a reasonable doubt that
    there was sexual intercourse between the appellant and the complainant because
    he had admitted it to F.N., whose evidence the trial judge accepted. The complainants
    soreness and the physical evidence of a tampon being lodged in her vagina were
    also circumstantial pieces of evidence of sexual intercourse. Accepting the
    evidence of C.N. about the complainants condition, the trial judge concluded
    that she was intoxicated to the point that she was incapable of consenting.
    Finally, the appellant was either aware that the complainant was incapable of
    consenting or he was reckless or willfully blind in proceeding with
    intercourse.

D.

THE
CHARTER
APPLICATION

[14]

The
    appellants sentencing was delayed, in part, because it took several months to obtain
    a
Gladue

report. The trial judge expressed concern about the
    delay and requested that counsel obtain an explanation from Aboriginal Legal
    Services (ALS). The appellant brought an application under s. 11(b) of the
Charter
raising two periods of delay, one pre-conviction and one post-conviction.
    The application was heard together with sentencing submissions.

[15]

The
    pre-conviction delay was 39 months, while the delay between conviction and
    sentencing was 13 months. Most of the pre-conviction delay occurred prior to
    the release of the Supreme Courts decision in
R. v. Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631. The application was also determined before this
    courts decision in
R. v. Charley
, 2019 ONCA 726, 147 O.R. (3d) 497, which
    established a five-month presumptive ceiling for delay between verdict and
    sentencing.

[16]

The
    trial judge dismissed the s. 11(b) application. With respect to the pre‑conviction
    delay, he focused on one area of contentiona nine-month period between the
    scheduled first appearance date when the appellant, who lived on a remote
    reserve in Northern Ontario, failed to attend court in Ottawa, and the date
    when he was re-arrested under a bench warrant and brought to court. The trial
    judge concluded that this period should be deducted entirely from the overall
    delay; the appellant, although blameless, was not entitled to any form of
    remedy for the nine-month delay which was not the fault of the Crown.

[17]

With
    respect to the post-conviction delay, the trial judge concluded that a six-month
    delay in the sentencing hearing when ALS had not received the request for a
Gladue
report was due to an administrative error and should be deducted as a
    discrete exceptional event, and that the further delay (which he calculated as seven
    months) was due to the complexity of the
Gladue
report.

E.

issues
on
appeal

[18]

The
    appellant raises the following issues on appeal:

1.

Did the trial judge err in his treatment of the evidence about the lodged
    tampon?

2.

Did the trial judge err in refusing a stay of proceedings because of
    pre-conviction delay?

3.

Did the trial judge err in dismissing the s. 11(b) application finding
    no unreasonable post-conviction delay?

4.

Should the appellants sentence be reduced, or its enforcement stayed?

(1)

The Trial Judges Treatment of the Lodged Tampon Evidence

[19]

The
    appellant submits that the trial judge erred by determining that the
    complainants tampon could not have been lodged by her own hand and that there
    was no plausible inference from the evidence other than sexual intercourse that
    could account for it. According to the appellant, the trial judge, who was not
    a medical expert, was not entitled to reject the appellants evidence as a
    physical impossibility. The appellant argues that this finding was important to
    the conviction such that it would be unsafe to uphold the conviction because of
    the trial judges other findings.

[20]

The
    appellant seeks to introduce as fresh evidence on this issue a letter from a
    gynecologist, Dr. Zaltz, as an expert report on the causes and symptoms of
    lodged tampons. Dr. Zaltzs brief letter states that a lodged tampon does not
    prove that there was penetration with a penis and that other causes of lodged
    tampons include the insertion of any object that pushes the tampon to the back
    of the vagina or spontaneous displacement of a tampon. Further, a lodged tampon
    can cause discomfort and soreness in the vagina and a foul vaginal odour. Dr.
    Zaltz observes that there is no scientific or medical literature on lost
    tampons, other than on toxic shock syndrome, a complication related to retained
    tampons.

[21]

The
    Crown asserts that the proposed expert report does not meet the test for fresh
    evidence: the appellant could have led this evidence at trial and there is no
    explanation as to why defence counsel did not do so. Furthermore, the Crown
    says that the evidence, had it been available, would not have made a difference
    to the outcome of the trial, and that in any event the evidence to support a
    conviction was overwhelming.

[22]

I
    agree with the Crown. The proposed expert report does not meet the test for fresh
    evidence under
Palmer v. The Queen
, [1980] 1 S.C.R. 759, at p. 775. An
    opinion such as the one offered by Dr. Zaltz could have been adduced by the
    defence at trial with a view to supporting the defence position that the tampon
    could have become lodged in the complainants vagina when, as the appellant
    testified, she had put her own fingers into her vagina during their encounter
    in the tent. In any event, as I will explain, the information contained in the
    letter lacks the cogency required for the admission of fresh evidence, as it
    would not have made a difference to the outcome of the trial.

[23]

Contrary
    to the appellants argument, the trial judge did not reject the defence
    position about how the tampon became lodged in the complainants vagina as
    being physically impossible, but he instead concluded that it was unlikely in
    the circumstances that the complainant would have done this herself. He said,
    in explaining the basis for rejecting the appellants evidence and in reference
    to the evidence that the complainant experienced vaginal soreness and that her
    tampon was lodged: These pieces of evidence cannot have resulted from the
    complainants own hand as the accused implies. The idea that a woman, in
    seeking to pleasure herself, would force a tampon so far up her vagina that it
    could only be found and extracted days later by a medical professional is
    unbelievable. He also found that there was no other plausible inference
    available on the evidence or the absence of evidence that could account for
    those physical effects. His rejection of the defence theory that the tampon
    could have become lodged by the actions of the complainant herself was based on
    his conclusion that this was unlikely in the circumstances of the case. The
    issue the trial judge determined was not whether it was physically impossible
    for a tampon to become lodged other than through sexual intercourse, but
    whether he was satisfied that this happened in the circumstances of this case.
    He did not err in his treatment of this issue.

[24]

The
    trial judges other findings support the conviction. He accepted the evidence
    of F.N. and C.N. and the appellants admission to F.N. that he had sexual
    intercourse with the complainant, and he provided a number of reasons for
    rejecting the appellants evidence. The trial judge did not err in making the
    findings that he did on the tampon evidence. Even if he had, the fresh evidence
    is not so significant in light of the other evidence from the witnesses, that
    the trial judge accepted, that it could reasonably be expected to have affected
    the result.

[25]

Accordingly,
    I would reject this ground of appeal.

(2)

The Pre-conviction Delay

[26]

The
    information was sworn on July 25, 2014. The appellants trial concluded on
    October 23, 2017. After subtracting 7.5 months of defence delay (which is
    conceded), the net pre-conviction delay was 31.5 months, which exceeds the
    30-month presumptive ceiling under
Jordan
by 1.5 months.

[27]

The
    only period of delay at issue is a nine-month period between October 29, 2014,
    when the appellant failed to attend court pursuant to a promise to appear, and July
    30, 2015, when he was re-arrested on a bench warrant. The appellant contends
    that the trial judge erred in treating the delay as inconsequential, and in not
    conducting a full
Jordan

analysis.

Facts

[28]

The
    appellant was arrested by military police on July 16, 2014 at his residence at
    a fly-in reserve in Northwestern Ontario. He was released on a promise to
    appear requiring his attendance at the Ottawa court on October 29, 2014.

[29]

According
    to the appellants affidavit on the s. 11(b) application, he was unable to
    travel to the Ottawa court because of the cost. He stated that a community
    legal worker gave him a number to call in Ottawa, although he did not say when he
    obtained the number. The appellant called the number on October 29, 2014, the
    date of his scheduled first appearance, and explained that he was unable to
    come to court, although he wanted to be there as he knew he was required to attend
    court. The appellant was told by the person he spoke to that he had no choice
    but to be there, that if he did not attend, there would be a warrant for his
    arrest, and that there was nothing they could do.

[30]

According
    to the transcript of proceedings on October 29th, duty counsel informed the
    court that she had received a call from the appellant and that he was not in
    the area. She related that she had told the appellant that it was unlikely
    that anything could happen, but that [she] could appear for him, and most
    likely a bench warrant would be issued. The presiding justice issued a bench
    warrant for the appellants arrest.

[31]

Nine
    months later, the appellant, who had continued to reside at home, was
    re-arrested by military police pursuant to the bench warrant, charged with failing
    to attend court (the charge was later withdrawn), and transported to Ottawa
    where he appeared in court on August 4, 2015. He retained counsel, found a
    surety, and was released from custody on August 7, 2015. In accordance with his
    bail conditions he lived in Toronto with his surety.

[32]

Counsel
    appeared on the appellants behalf pursuant to a designation of counsel for all
    court appearances after August 7, 2015, except for the preliminary hearing and
    the trial, which the appellant attended in person.

The trial judges reasons

[33]

Dealing
    with the nine-month pre-conviction delay, the trial judge addressed the defence
    argument that the Crown or the administration of justice ought to bear
    responsibility for the consequence of the fact that the appellant was required
    to appear in Ottawa court in October 2014 when he was known to live in a remote
    area in Northwestern Ontario, and that in this context the state had some
    responsibility to move the matter forward by facilitating his transportation
    from his residence to Ottawa.

[34]

The
    trial judge concluded that, although he was sensitive to the appellants
    circumstances, the delay resulted from the operation of geography rather than
    the operation of law or as a consequence of any state decision or act. He could
    not conceive of how the administration of justice could be set up or resourced
    so as to mitigate the effects of this reality. Therefore, he treated the delay
    as inconsequential, and not a delay created by the Crown. The trial judge
    concluded:

The simple reality is that [the appellant] was
    alleged to have committed an offence here in Ottawa. Our law would direct that
    the trial was to happen in Ottawa, and as I say, the fact that he could not get
    himself here to attend court as required is something for which I hold him blameless,
    but about which I am unconvinced that he is entitled to any form of remedy. I
    take that chunk of time essentially out of the mix and pretend like it didnt
    happen.

Positions of the parties

[35]

The
    appellant contends that the trial judge erred in treating the entire nine
    months between October 29, 2014 and August 4, 2015 as inconsequential, and in
    failing to conduct a full
Jordan

analysis. The appellant says
    that because the Crown has a duty to bring an accused to trial, and in light of
    the trial judges finding that he was blameless in not attending court, none
    of the delay is attributable to the defence. The appellant points to the fact
    that there was no evidence from the Crown to explain why it took nine months
    for the military police to re-arrest him pursuant to the bench warrant, and he says
    that in these circumstances the Crown is unable to justify the delay under the
    transitional exceptional circumstance analysis.

[36]

The
    Crown submits that the entire nine-month delay resulted from the appellants
    failure to appear pursuant to a promise to appear, and should therefore be
    deducted as defence delay. There were steps that the appellant could have taken
    to mitigate the delay. The Crown asserts, in the alternative, that at least
    four or five months of the nine-month period should be deducted as defence
    delay. In the further alternative, the Crown argues that the delay above the 30-month
    presumptive
Jordan

ceiling is justified under the transitional exceptional
    framework.

[37]

While
    I would not adopt the trial judges reasoning, in my view, the delay that
    exceeds the presumptive 30-month ceiling is justified. I will explain why, although
    some of the nine-month period could be characterized as defence delay, it is preferable
    and sufficient on the record in this case to address the delay under the
    transitional exceptional circumstance analysis.

Defence delay

[38]

The
    parties rely on competing duties that they say apply here: the obligation of
    the Crown to bring an accused to trial, and the duty of an accused who is
    obliged to attend court to avoid causing unnecessary delay.

[39]

The appellant seeks to put responsibility for all or most of the nine
    months of delay on the Crown, relying on the approach taken in
R. v.
    MacIntosh
, 2011 NSCA 111, 310 N.S.R. (2d) 274, affd 2013 SCC 23, [2013] 2
    S.C.R. 200.
MacIntosh
involved a delay of many years in bringing an
    accused to trial. The accused left the country while he was under
    investigation, but before any charges were laid. The Nova Scotia Court of
    Appeal held that the delay that accrued while the accused was out of the
    country pending extradition did not constitute defence delay. The court relied
    on the absence of any duty on the part of the accused to bring himself to
    trial, noting as well that there was no common law duty to assist the police:
    at paras. 47-49.

[40]

The
    Crown asserts that the appellant is responsible for the nine months of delay
    because it followed on the appellants failure to attend court pursuant to a
    promise to appear. Defence delay includes any period when the court and Crown
    are ready to proceed and the accused is not:
Jordan
, at para. 64. Moreover,
    the Supreme Court in
Jordan

emphasized that illegitimate defence
    delay includes
defence inaction
: at paras. 113, 121; see also
R. v.
    Cody
, 2017 SCC 31, [2017] 1 S.C.R.
    659,

at para. 33. Although the trial judge characterized his
    conduct as blameless, the appellant could and should have taken steps to
    mitigate the delay, including having advised sooner than the day of his first
    appearance that he was unable to attend court.

[41]

The
    Crown relies on this courts decision in
R. v. Burke
, 2018 ONCA 594,
    47 C.R. (7th) 282, which characterized the many years of delay from when
    charges were laid until the time the respondent was returned to Canada as
    illegitimate defence delay. The respondent had fled the country shortly after
    his arrest, in violation of his bail, with the express purpose of avoiding
    prosecution. This court held, at para. 12, that notwithstanding that the
    Canadian authorities could have taken steps to extradite the accused as early
    as 2003, the delay was caused directly by the respondent, whose actions were
    not taken to respond to the charges, but were intended to frustrate them. The
    Crown asserts that, similarly, all of the delay that followed the appellants
    failure to attend court when he was required to do so pursuant to the notice of
    appearance is defence delay, even if the police could have attended sooner to
    execute the warrant. Moreover, the appellants failure to contact the Crowns
    office until the day he was to attend court was defence inaction that caused
    delay.

[42]

There
    are differences between the present case and both
MacIntosh

and
Burke
.
MacIntosh

involved an accused who was under no
    legal obligation to return to Canada until his extradition, whereas the
    appellant had a legal obligation to attend court, arising from his promise to appear.
    And in any event, the court in
MacIntosh
, which was a pre-
Jordan
case,

characterized some of the delay (four years involved in the
    extradition process) as inherent delay: at para. 106. And, in the present case,
    unlike
Burke
, the trial judge accepted that the appellant, who had
    advised duty counsel of his whereabouts and that he was unable to attend court,
    had not attempted to frustrate the charges or to flee. Rather, although the
    appellant was unable to attend court, his whereabouts were known and he
    remained at the location where he was first arrested until the warrant was
    executed nine months later.

[43]

Under
    the former
Morin

framework (
R. v. Morin
, [1992] 1
    S.C.R. 771), the delay in executing a bench warrant following an accuseds
    failure to attend court was sometimes treated as defence delay, sometimes as
    shared delay (defence and Crown) and sometimes considered to be inherent delay.
    See the cases cited at
Géolier v. R.
, 2018 QCCS 4637, at footnotes 13
    and 14. In some cases, even where the delay in executing the warrant is
    unexplained, courts have characterized all or most of the delay as defence
    delay. See, for example,
R. v. Brackenbury
, 1988 ABCA 41;
R. v.
    Rickett
, 2012 ABPC 52 and the post-
Jordan

case,
R. v.
    Dumais
, 2019 ABPC 23, 88 Alta. L.R. (6th) 111. Other cases have resulted
    in a stay of proceedings where the Crown was found to be responsible for all or
    part of the delay in executing the warrant, notwithstanding an initial failure
    to appear, once the accuseds whereabouts were known. This is especially the
    case where the Crowns delay in executing the warrant is unexplained: see, for
    example,
R. v. Ryan
, (1999), 211 N.B.R. (2d) 1 (PC);
R. v.
    Pelletier
, 2013 NBPC 5, 401 N.B.R. (2d) 180; and
R. v. Unka
, 2005
    NWTSC 15 (SC).

[44]

This
    case does not fit comfortably into the analysis in the existing jurisprudence.
    Is it defence delay when an accused fails to attend court pursuant to a promise
    to appear for reasons beyond their control? Here the trial judge concluded that
    the appellant could not be faulted for failing to attend court as required, and
    I agree with this assessment. While it is conceded that it would take some time
    for the military police to execute the bench warrant, there was no evidence to
    explain why it took nine months. At the same time there was no evidence to
    explain why the appellant waited until the day of his court appearance to
    advise that he was unable to attend court. Arguably he could have mitigated the
    delay by notifying duty counsel in advance of his court date, by applying for
    Legal Aid, or by retaining counsel to appear on his behalf, such that his
    failure to do so amounted to defence inaction.

[45]

This
    is not an appropriate case in my view to weigh the competing arguments
    respecting defence and Crown responsibility for delay which arises after an
    accused fails to attend court and while a bench warrant is outstanding. Unlike
    many of the cases where this question has arisen, the resulting delay within
    the overall framework is quite short. And, in the present case  where most of
    the pre-conviction delay pre-dated
Jordan
,
    where the appellant acknowledges that, but for the nine-month delay in question
    the proceedings went relatively smoothly, and where the overall delay exceeds
    the
Jordan
cap by only 1.5
    months, it is preferable to address the delay caused by the nine-month period
    under the transitional exceptional circumstances heading.

Transitional exceptional circumstances analysis

[46]

While
    the trial judge noted that this was a transitional case, he did not go on to
    consider whether the transitional exceptional circumstances analysis applied. I note
    that the entire nine-month bench warrant period (October 29, 2014 to July 30,
    2015) occurred prior to the release of
Jordan
.
    Accordingly, a transitional exceptional circumstance applies if the Crown can
    demonstrate that the time the case has taken is justified based on the parties
    reasonable reliance on the law as it previously existed. This requires a
    contextual assessment, sensitive to the manner in which the previous framework
    was applied, and the fact that the parties behaviour cannot be judged strictly,
    against a standard of which they had no notice:
Jordan
, at para. 96.

[47]

The
    Crown points out that, even if the entire nine-month period while the appellant
    was on bench warrant status is counted as Crown delay, the total institutional
    and Crown delay in this case was slightly over 17 months, and accordingly did
    not exceed the
Morin
guideline.
    The Crown contends that the delay above the
Jordan

ceiling can
    be justified under the transitional exceptional circumstance analysis. The
    appellant contends that, in the absence of any evidence by the Crown as to the
    reasons why it took nine months for the military police to execute the bench
    warrant, none of the delay during that period can be justified.

[48]

In
R. v. J.C.P.
, 2018 ONCA 986, at
    para. 21, this court reiterated the factors that inform the transitional
    circumstance analysis. These include: (i) the complexity of the case; (ii) the
    period of delay in excess of the
Morin
guidelines; (ii) 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.

[49]

This
    case was not complex. There were three Crown witnesses, including the complainant.
    Only the appellant testified for the defence. The evidence went in in four days
    and judgment was given orally on the fifth day of trial. The overall delay did
    not exceed the
Morin

guideline of 18 months for a trial in the Superior
    Court. According to a chart attached to the appellants factum that
    characterizes the periods of delay in this case, the period of Crown and
    institutional delay (including the nine-month period) is just over 17 months. While
    it would have been preferable to have evidence from the Crown to explain why it
    took nine months for the military police to execute the bench warrant, the
    appellant acknowledges that some delay in executing the warrant would be
    reasonable.

[50]

The
    appellant also acknowledges that his delay in notifying the Crown of his
    inability to attend court is relevant to the assessment of whether the delay is
    justified as a transitional exceptional circumstance. He knew of his scheduled
    court date for over three months, yet he waited until the day he was supposed
    to be in court, by which time it was too late to arrange for his transportation
    so that he could attend on the first appearance date. This conduct is inconsistent
    with a desire to move the proceedings forward, or at least amounts to acceptance
    of a wait and see approach. Nor is there evidence of prejudice to the
    appellant resulting from the delay. He continued to reside in his home under a
    promise to appear and without restrictive bail conditions.

[51]

As
    I have explained, the law prior to
Jordan

on the attribution of
    delay in executing a bench warrant following the accuseds failure to attend
    court sometimes treated such delay as defence delay, sometimes as shared delay
    (defence and Crown), and sometimes as inherent delay. The Crown might
    reasonably have anticipated in light of these cases that at least some of this
    delay would be considered defence delay or inherent delay, but as I have
    explained, even if this entire period were attributed to the Crown or
    institutional delay, the overall Crown and institutional delay would still fall
    within the
Morin

guidelines.

[52]

Finally,
    apart from the initial nine-month period, the appellant acknowledges that,
    after deducting 7.5 months for defence delay, the rest of the proceedings prior
    to his conviction went smoothly and without delay.

[53]

After
    considering the relevant factors, I conclude that the pre-conviction delay
    attributed to the nine-month period of delay while the bench warrant was
    outstanding and resulting in a net delay of 1.5 months above the
Jordan

presumptive limit is justified under the transitional exceptional
    circumstance approach.

[54]

I
    would therefore not interfere with the trial judges conclusion that there was
    no violation of the appellants s. 11(b) right to trial within a reasonable
    time as a result of pre-conviction delay and I would dismiss this ground of
    appeal.

(3)

The Post-conviction Delay

[55]

The
    second period of delay to consider is the 13 months between the date of the
    appellants conviction on October 25, 2017 and his sentencing on November 21, 2018.

Facts

[56]

On
    October 25, 2017, the trial judge convicted the appellant, ordered both a
Gladue
report and a pre-sentence report, and adjourned the matter to a January 5, 2018
    status court. There were several appearances in status court before sentencing
    was scheduled, mainly to check on the progress of the
Gladue

report.

[57]

On
    January 5th, the matter was adjourned to February 2nd, after defence counsel
    indicated, Weve not received the reports at all, nor any indication as to the
    process. On February 2nd, the court was informed by defence counsel that the
    appellant had yet to be contacted to schedule an interview, and the parties
    agreed to an adjournment to April 6th. According to an affidavit filed on
    behalf of the appellant, his counsel made several inquiries of the court and
    ALS as to the status of the
Gladue

report. Initially it was
    very difficult to get any information, until it was eventually determined that
    ALS, for an unknown reason, had never received the courts order for a report. On
    April 5th, defence counsel sent a request form to ALS for the
Gladue
report, and on April 6th, the matter was adjourned to the next assignment court
    as the appellant had just been seen for the report. On May 9th, the
Gladue

report writer wrote to the court to advise on the progress of the report, and
    to request that the sentencing be adjourned to June 18th or later to allow her
    to conduct further interviews with the appellant and to schedule interviews
    with his supports. At the May 11th court, the matter was set for sentencing on
    August 30, 2018.

[58]

On
    August 13th, the report writer advised defence counsel that she would try her
    best to have the report prepared a few days prior to the sentencing however the
    report was delivered late the night before, prompting a defence request for an
    adjournment. The trial judge advised that the report was late, and that its
    lateness may well factor into sentence, and he asked for an explanation for the
    delay in providing the report. He adjourned the sentencing to November 16th, which
    was his next available date (because he was presiding over a murder trial). The
    sentencing was adjourned again at the defence request so that a s. 11(b)
    application could be brought at the same time.

[59]

By
    letter dated September 5, 2018, Jonathan Rudin, Program Director for ALS,
    provided an explanation for the delay in providing the
Gladue

report.
    ALS received a report request from defence counsel on April 5, 2018, but was unaware
    that a report had been ordered by the trial judge until speaking with the Crown
    on May 9, 2020. Mr. Rudin stated that it was generally their practice not to
    submit
Gladue
reports a month or two in advance of a sentencing
    hearing because it is important to provide the court with up-to-date
    information. He explained that time was required to arrange calls and meetings
    with the appellant and his collaterals. Finally, he indicated that the report
    author was working on 19 other reports between the time the request was
    received and her completion of the report.

The trial judges reasons

[60]

The
    trial judge viewed the post-conviction delay period as having two parts. He
    attributed the first six months of delay, when ALS had not received the request
    for a
Gladue
report, to a discrete communication or clerical error
    rather than a systemic failure. This he treated as an exceptional circumstance.
    He stated:

My view is, in reviewing the materials filed,
    that the six months of time attributable to this clerical error is a discrete
    event. It strikes me as human error, a breakdown in communication, and while it
    is unfortunate, I see it as the sort of discrete event or one off that happens
    when the human enterprise of the administration of justice is engaged. Human
    beings, being fallible, will occasionally fail.

I say this because I distinguish it from a
    resourcing issue where decisions are made by people in charge who can make
    things happen or not, who set up a system that doesnt work. It does not strike
    me that that is the case here. It seems simply that there was a breakdown in
    communication, that someone dropped the ball, and I see that as unfortunate but
    different than a systemic failure.

[61]

The
    trial judge attributed the remaining period of seven months to the level of
    complexity in preparing the
Gladue

report. He said:

The remaining six to seven months it took to
    essentially write the report is, in my view, having read the report and come to
    appreciate it, attributable to the exceptional complexity that this particular
    case has. I say this for this reason. I have read many
Gladue
reports
    in many cases. Some of them are quite slim in that many aboriginal offenders
    know virtually nothing about their aboriginal heritage through reasons usually
    attributable to the disconnectedness they have from it as a result of all the
    different historical facts that we have come to learn about since the Sinclair
    Commission.

This one is not that. It is  40 plus pages
    and it strikes me as incredibly dense and deep. It is, to use a colloquial
    term, a very deep dive into [J.K.s] life. I found it very well done, very
    comprehensive and, frankly, I was not surprised that it took as long as it did.

[62]

Accordingly,
    the trial judge concluded that no s. 11(b) breach had occurred.

Positions of the parties

[63]

The
    trial judge did not have the benefit of this courts decision in
Charley
,

in which the court established a five-month presumptive ceiling for
    sentencing delay. The appellant argues that, in light of
Charley
, the post-conviction
    delay was unreasonable.

[64]

The
    appellant submits that, with respect to the first period of delay, the trial
    judge erred in concluding that the administrative error was an exceptional
    circumstance, in the absence of considering whether the delay could have been
    reasonably mitigated by the Crown and the justice system. The appellant says
    that it appears that none of the defence, the Crown or the trial judge made any
    efforts to ensure prior to January 5, 2018 that the process of writing the
Gladue

report had commenced. Even when defence counsel appeared and advised that
    there were no indications as to progress on January 5, 2018, the Crown seemed
    content to let the matter drift and failed to express any concern about delay
    until August 30, 2018 when the defence was compelled to seek an adjournment.
    Nor does the record demonstrate any inquiries by the trial judge to ensure that
    his order had been received and was being acted upon.

[65]

With
    respect to the second period of post-conviction delay the appellant points out
    that the trial judge erred in saying that the
Gladue

report
    took six or seven months to complete. In fact, from the day ALS received the
    defence request, the report took four months and 25 days to complete. The
    appellant points to the information provided in response to the trial judges
    request indicating that the author of the report completed 19 other
Gladue
reports during that time. The appellant contends that it is the Crowns
    responsibility to ensure that sufficient resources are in place for
Gladue
workers to prepare their reports on a timely basis.

[66]

The
    appellant seeks a reduction in sentence as a remedy for post-verdict delay. See
R. v. Hartling
, 2020 ONCA, 150 O.R. (3d) 224, at para. 119. In that
    case, a delay of 14 months in the production of a
Gladue

report
    occurred because of institutional limitations. Mr. Hartling was accorded credit
    in his sentencing as a remedy for breach of his s. 11(b) rights. The appellant
    here claims that the delay should be considered as an enhanced mitigating
    circumstance leading to a reduction in sentence.

[67]

The
    Crown argues that there is no error in the trial judges analysis of the
    post-conviction periods of delay: the first period was due to an administrative
    error, there was no indication that anyone believed the order had not been
    received, and it was assumed the appellant would be contacted by ALS in due
    course. The trial judge correctly considered the delay to be an exceptional
    circumstance. In contrast to
Hartling
,

the lengthy delay was
    not due to institutional limitations. Once the request was received by ALS, the
    report was prepared within five months. The Crown submits that the trial judge
    was correct in his assessment of the report as thorough and comprehensive: the
    45-page report was prepared after six in-person interviews and one phone
    interview with the appellant and additional interviews with three collaterals. The
    further delay resulted from the report having been sent the night before the
    sentencing. The Crown relies on the transitional exceptional circumstance
    analysis: the parties were operating in a pre-
Charley

environment,
    and would reasonably have understood that the time needed to prepare the report
    would be treated as inherent time or that some additional time would be
    warranted.

Discussion

[68]

A
    discrete exceptional circumstance is (1) reasonably unavoidable or
    unforeseeable on the part of the Crown; and (2) unable to be reasonably
    remedied when it arises:
Jordan
, at para. 69. In my view, the first
    period of post-conviction delay, when ALS had not received the judges order
    for a
Gladue

report, meets this test. The trial judge concluded
    that there was administrative error with an unknown source, and this is
    consistent with the evidence. The Crown was unaware of the error. While it was
    incumbent upon the Crown to minimize the delay resulting from the error, there
    is no suggestion that  had the Crown made more prompt inquiries about the
    status of the report  it could have discovered the error sooner or mitigated
    its effect. As noted above, an affidavit filed on behalf of the appellant
    explains that, prior to discovering the error, defence counsel had made several
    inquiries of the court and ALS about the report but found it difficult to get
    any information. In my view, the administrative error qualifies as reasonably
    unavoidable or unforeseeable, and, in the circumstances of this case, it could not
    have been reasonably remedied once it arose. By the time the parties learned of
    the error, much of the delay had already occurred. The parties took appropriate
    action to move the matter forward once they learned of the error.

[69]

Subtracting
    the delay attributable to the administrative error as a discrete exceptional
    event leaves approximately 7.5 months of post-conviction delay. Even if the
    administrative error were not characterized as a discrete exceptional
    circumstance, all of the post-conviction delay in excess of the
Charley

ceiling is justified as a transitional exceptional circumstance.

[70]

In
Charley
, Doherty J.A. held that the transitional exceptional
    circumstance applies to sentencing proceedings, writing, at para. 105:

I make one further observation with respect to
    the application of the
Jordan
analysis to post-verdict delay.
Jordan

recognized that the new framework it put in place should be applied
    somewhat differently in respect of cases that were in the system before
Jordan
was released: see
Jordan
, at paras. 95-100. The majority described
    transitional exceptional circumstances that could, in some situations, justify
    delay above the presumptive ceiling. I would take the same approach in applying
    the presumptive ceiling applicable to post-verdict delay set down in this case.

[71]

In
    my view, the fact that this was a transitional case explains the parties
    conduct throughout. Prior to the release of
Charley
, the parties  and
    the
Gladue
report writer  had no reason to think that they were
    working with a five-month presumptive time limit.

[72]

The
    delay in production of the
Gladue
report was not due to institutional
    limitations. It is troubling that it took so long for the parties to discover
    the problem with the
Gladue
order. The record suggests some level of
    indifference on the part of both the Crown and the defence for several months
    following the appellants conviction. In January and February 2018, defence
    counsel was apparently content with how the matter was proceeding, and did not
    put concerns about delay on the record.

[73]

In
    my view, the parties attitudes are explained by the fact that this is a
    transitional case. Their approach to the initial delay reflects their reliance
    on the previous state of the law. Defence counsel discovered the problem with
    the
Gladue
order in April 2018, and she took the initiative to send in
    her own request.

[74]

Once
    the problem with the
Gladue
order had been resolved, the matter was more
    or less back on track. The
Gladue
report was completed on August 29,
    just under five months after defence counsel sent her request to ALS. Had the
Gladue
report writer been operating post-
Charley
, she might well have
    completed the report sooner, to avoid an adjournment. However, even operating
    in the pre‑
Charley
world, she completed the report within the
    five-month ceiling.

[75]

Further,
    had the sentencing proceedings in this case occurred after the release of
Charley
,
    the court and the parties likely would have made greater efforts to prioritize
    scheduling of the sentencing hearing after the
Gladue

report
    was finished. The sentencing hearing was delayed for two months after
    completion of the
Gladue
report because the trial judge was sitting on
    a murder trial. Had the court and the parties been aware of the five-month
    ceiling, they might have found a way to obtain an earlier date.

[76]

I
    also note that the defence brought a s. 11(b) application in the two months
    between the completion of the
Gladue
report and the sentencing
    hearing. This was a legitimate step by the defence. The s. 11(b) application
    had merit and I do not intend to suggest that this should be considered defence
    delay. However, in my view, under the
Morin

framework, these
    two months of delay would arguably be considered necessary preparation time for
    the s. 11(b) application, rather than institutional delay, given that defence
    counsel would not have been able to proceed with the s. 11(b) application
    immediately.

[77]

For
    these reasons, I would dismiss this ground of appeal.

(4)

The Fitness of the Sentence

[78]

Finally,
    although the trial judge found no breach of s. 11(b) with respect to the
    post-conviction delay, the trial judge accounted for the delay as a mitigating
    factor on sentencing.

[79]

In
    his reasons for sentence, the trial judge observed that the appellant had
    suffered prejudice as a result of restrictive bail conditions pending trial and
    sentencing:

I also note that he has been compliant with
    bail for quite a long time, having been obliged through the circumstances to
    live in Toronto. I see that as a significant imposition on his liberty interest
    and disagree with the Crown that it is an opportunity that he has been making
    the best of, et cetera. I see this more through the lens of what was advocated
    from the defence side and that it is him simply making the best of a bad
    situation, that he would far rather be home, living according to his
    traditional belief system, and the fact that he is obliged to live in the
    largest city in the country has been, in these circumstances, something of a
    negative experience. He is also cut off from his family and that undoubtedly
    has had a significant impact upon him.

[80]

The
    trial judge recognized this as a mitigating factor worthy of driving the
    sentence downward, and explicitly considered it again in imposing a reduced
    sentence of two years. Although this is not the enhanced mitigation for a s.
    11(b) breach referred to in
Hartling
, in my view, it reflects the fact
    that the trial judge was sensitive to the prejudice experienced by the
    appellant as a result of the delay in the proceedings and appropriately took
    that into account in imposing sentence.

[81]

The
    appellant also seeks a further reduction in his sentence or that the sentence
    be stayed in light of the fresh evidence of his personal circumstances since
    being sentenced. He submits that reincarceration would be counterproductive to
    the rehabilitative steps he has taken and continues to take since being
    released on bail pending appeal.

[82]

The
    Crown opposes any reduction in the sentence, asserting that the trial judge gave
    detailed and thoughtful consideration to the aggravating and mitigating
    circumstances in arriving at a just sentence. In so doing he took into
    consideration the progress the appellant made while on bail, which is
    essentially the same information that is contained in the fresh evidence.

[83]

I
    agree. The trial judge considered the aggravating circumstances: he recognized
    that the forced intercourse was a very significant assault on the physical
    integrity of the complainant who was incapacitated by alcohol. The sexual
    assault was an opportunistic breach of trust and the appellants bragging about
    a sexual conquest was misogynistic and an aggravating factor. He also
    considered the mitigating factors: the fact that the appellant had no criminal
    record; the disinhibiting effect of alcohol leading to behaviour that was
    out-of-character for the appellant; the
Gladue

report which the
    trial judge described as quite impactful on sentence and of tremendous
    value; the appellants history of negative personal experiences; and letters
    of support. And, as noted above, the trial judge referred to the fact that the
    appellant had been compliant with bail, and had been living in Toronto, cut off
    from his family and his home.

[84]

The
    two-year sentence of incarceration is a fit sentence. The Crown was seeking a
    sentence of three years in custody, while the defence sought a non‑custodial
    sentence of probation and a series of rehabilitative terms or a custodial
    sentence of two years. The trial judge took into consideration all of the
    aggravating and mitigating circumstances when he concluded that, but for the
    appellants unique circumstances, including
Gladue
considerations, the
    absence of a criminal record, the progress the appellant made while on bail and
    the length and effect of the appellants conditions of bail, the Crowns
    requested sentence of three years would have been appropriate.

[85]

The
    appellants fresh evidence indicates that he has continued with the
    rehabilitative steps that he was taking at the time of sentencing. While this
    is positive and encouraging, this does not justify a reduction of sentence in
    the circumstances of this case. Nor is it in the interests of justice to stay
    any portion of the execution of the sentence: see
R. v. Cowell
, 2019
    ONCA 972, 151 O.R. (3d) 215, at para. 111, leave to appeal refused, [2020]
    S.C.C.A. No. 54.

F.

Disposition

[86]

For
    these reasons I would dismiss the conviction appeal and the sentence appeal.

Released: April 26, 2021 K.M.v.R.

K. van Rensburg J.A.

I agree. M.L. Benotto J.A.

I agree. Thorburn J.A.


