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The Ontario Court of Appeal held that a trial judge was not functus officio for a post-verdict s. 11(b) application and dismissed the Crown’s appeal.
The court found a breach of s. 11(b) in a sexual assault prosecution and ordered a judicial stay, holding the delay exceeded the Jordan ceiling.
The trial judge committed palpable and overriding factual errors and errors of law by attributing delay to the defence without inquiring into the time required to review newly produced therapist notes and by failing to take steps to mitigate non‑defence delay; on fresh analysis net delay (602 days) exceeded the Jordan presumptive ceiling and no exceptional circumstances justified it, so the appellant's s.11(b) right was breached and a stay of proceedings was required.
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The trial judge's oral reasons were insufficient because they failed to identify which Crown argument he accepted; a fresh analysis shows net delay from charge (Sept 9, 2019) to end of evidence and argument (Sept 21, 2021) exceeded the 18‑month Jordan ceiling even accounting for Covid pauses and an acknowledged 7‑day defence waiver, and the period after July 16, 2021 was conceded Crown delay; therefore the appropriate remedy is a stay of proceedings for unreasonable delay under s.11(b).
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The motions judge did not err: the appellant expressly waived part of the delay, the net delay was 29 months which is below the 30‑month Jordan ceiling, so there was no s.11(b) breach; there was no palpable and overriding error in the motions judge's findings and no basis to interfere with the jointly recommended sentence, therefore the appeal is dismissed.
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Majority held there was no s.11(b) breach because the trial judge correctly characterized and apportioned defence delay and permissibly concluded that the transitional exceptional circumstance justified delay exceeding the Jordan ceiling; majority also held the jury charge, read as a whole, properly instructed on burden and W.(D.) and that the 15‑year global sentence was fit; appeal dismissed.
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The Court of Appeal dismissed Mr. Woolsey’s appeal, holding the trial judge gave sufficient assistance to the self-represented accused and no miscarriage of justice occurred.
The appeal is dismissed because the trial judge reasonably applied Jordan's transitional exceptional circumstance and Morin to conclude delay was justified; the lawyer's memorandum did not negate the legal mental element of fraud or overcome the trial judge's adverse credibility findings; the appellant failed to establish ineffective assistance and did not supply expected affidavits leading to an adverse inference; and sentencing calculations were supported by the record except that the victim fine surcharge must be set aside.
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Total delay (38 months +) exceeded the 30-month presumptive ceiling; disputed periods were not defence delay on the contextual facts (defence reasonably available, Crown caused adjournments via late disclosure), and the Crown failed to prove exceptional circumstances because the enhanced extraction technology was available earlier and the late use resulted from RCMP workload rather than unforeseeable or unavoidable events; s.11(b) breach established and a stay of proceedings under s.24(1) Charter was required.
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After calculating total delay (796 days), deducting 220 days attributable to Defence (explicit and implied waiver and unavailability) yielding a net delay of 576 days (18 months and 3 weeks), and then deducting five months for discrete exceptional Crown events (counsel conflict delay and judicial appointment/unavailability), the remaining delay was 13 months and 3 weeks, below the 18 month provincial Jordan ceiling; accordingly there was no s.11(b) violation and the stay was denied.
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