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The Court of Appeal for Ontario dismissed a s. 11(b) appeal, holding that the COVID-19 delay deduction was appropriate and the minor double counting did not affect the result.
The Ontario Court of Appeal dismissed an appeal from a conviction for sexual interference, rejecting the appellant’s section 11(b) delay arguments.
The application for judicial interim release was allowed because the appellant met the low threshold that the appeal is not frivolous, was likely to surrender, and detention was not necessary in the public interest; on balancing enforceability of the convictions against the need for meaningful appellate review, the court found reviewability outweighed enforceability given arguable Charter and evidentiary grounds, and that risks to public safety could be managed by conditions including a $10,000 cash deposit.
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The trial judge did not err in apportioning 30 days of the Feb 14–Apr 3 period to the defence under Hanan; the Crown failed to establish on the record that additional specific periods were attributable to COVID‑19 backlog so no further pandemic deductions were granted; net delay exceeded the Jordan ceiling and a stay was required under s.11(b).
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The court dismissed a s. 11(b) Charter stay application, finding the pre-arrest delay was not deductible but the adjournment to preserve a joint trial was.
The Court upheld the trial judge: the proffered pre- and post-incident sexual activity did not form part of the subject-matter and its only probative value relied on prohibited twin-myth inferences, so it failed at Stage One of s.276; on delay the majority of the 49-month period was either defence-attributable or excused by exceptional events (trial judge recusal, judicial illness, COVID-19), leaving net delay below the 18-month Jordan ceiling, so no s.11(b) breach occurred.
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The Court dismissed the Crown's appeal, holding there was no error in the trial judge's articulation of the exceptional circumstances test or in his discretionary determination that the Crown could have mitigated delay by proceeding separately; the trial judge was entitled to treat the 92 days as not deductible.
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Although the appellant showed some intention to appeal and provided an explanation for delay given her self-representation, the proposed grounds lacked realistic merit: the alleged fresh witness evidence was known before trial and no adjournment was sought, the s.11(b) Charter ground was never raised at trial and would require rare leave, and the trial judge's findings on self-defence were reasonable and not shown to involve legal error; therefore justice did not require an extension and the motion was dismissed.
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The appeal is dismissed: the trial judge did not materially err in finding a s.11(b) sentencing-process breach or in concluding a CSO was available; although reliance on Charley’s five-month ceiling was legally imperfect, the appellate court agrees there was an unreasonable delay and appropriate sentence reduction was applied; the resulting eight-month CSO with three years probation is not demonstrably unfit and stands.
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The Court held that the appellant was detained from the time he was placed in the police interview room and that his s.9 and s.10 rights were breached beginning at the commencement of the station interview; statements taken from about 5:50 p.m. onward were obtained in violation of the Charter and, applying the Grant s.24(2) factors, should have been excluded; admission of the improperly obtained station statements was legal error warranting quashing the conviction and ordering a new trial.
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