WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.B., 2014 ONCA 527

DATE: 20140708

DOCKET: C55725

Rosenberg, Cronk and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.B.

Appellant

Mark Halfyard, for the appellant

Greg Skerkowski, for the respondent

Heard: March 24, 2014

On appeal from the convictions entered on April 26, 2012
    by Justice Brian Weagant of the Ontario Court of Justice, sitting without a
    jury.

Rosenberg J.A.:

[1]

The appellant young offender appeals his convictions by Weagant J. for
    numerous firearm and ammunition offences. The appellant raises two grounds of
    appeal. He submits that the trial judge erred in refusing to stay proceedings
    because of the delay in affording the appellant a bail hearing. Second, the
    appellant submits that the verdicts are unreasonable. For the following reasons,
    I would dismiss the appeal.

A.

THE BAIL HEARING DELAY

(1)

The Facts

[2]

Just after midnight on April 3, 2011, police executed a search warrant
    at the appellants home in Toronto. The appellant and another young man, K.A., were
    arrested. Firearms and ammunition were found in the bedroom that the appellant
    ordinarily occupied. I will refer in greater detail to the facts when I deal
    with the reasonableness of the verdicts. Later that day the appellant appeared
    at the Old City Hall Courthouse and the matter was adjourned to April 4. The
    adjournment was on consent. The appellant was not ready to proceed with the
    bail hearing at that time as his sureties were not available. The 17-year old
    appellant has no prior record.

[3]

On April 4, Crown counsel requested an adjournment of the bail hearing
    of the appellant and the co-accused to have the officer-in-charge available to
    testify and to have a guns and gangs Crown counsel available to take carriage
    of the matter. The justice of the peace adjourned the bail hearings for the
    appellant and his co-accused to Wednesday, April 6. The justice of the peace
    stated that he would attempt to protect April 6 to ensure that there was time
    to deal with the bail hearing. The justice of the peace was of the view that
    the bail hearing would take some time.

[4]

The proceedings on April 6 were delayed because Crown counsel did not
    arrive at court until 11:00 a.m. He explained that he had been looking for some
    material at another courthouse. He then went on to say that he was ready to
    proceed but did not think the bail hearing could be completed in the one day.
    Crown counsel was concerned that if the proceedings started but had to be
    adjourned, the adjournment might be lengthy because of the schedule of the
    justice of the peace. Counsel for the appellant stated that he did not believe the
    hearing would take more than a day but stated that he was fairly flexible this
    week and next week. Duty counsel, who was conducting the bail hearing for the
    co-accused, stated that she was also anxious to proceed. Both parties had their
    sureties present at the court.

[5]

At this point, the justice of peace stated that for any bail hearing
    that will last more than an hour and one-half or two hours there must be a
    special justice of the peace to conduct the hearing so as not to burden the
    regular bail court. Crown counsel stated that there was a directive from the
    administrative judge to that effect. The justice of the peace then stated that
    while he could start the bail hearing he was not available the next day or for
    the next two weeks. Crown counsel stated that he was not available the next two
    days. At this point, the justice of the peace suggested that they should
    follow the protocol and obtain a date for the bail hearing from the trial
    coordinator. The case briefly adjourned. When counsel returned, Crown counsel
    stated that they had obtained a date of April 14. Counsel for the appellant
    stated that he had one surety to call for the appellants bail hearing and that
    the appellant had a constitutional right to a bail hearing as soon as
    reasonably possible. He stated that he was available for the rest of the week
    and the following week, as well as April 14. The agent for the co-accuseds
    counsel stated that she understood that Friday, April 8 was available but that
    Crown counsel was not and could not find anyone to replace him. The justice of
    the peace stated that in light of the directive from the administrative judge,
    he would grant the adjournment to April 14.

[6]

The bail hearing for the appellant began on April 14. At the
    co-accuseds request, his bail hearing was adjourned to April 21 so that
    counsel would have an opportunity to deal with some material that had been
    disclosed by Crown counsel. The hearing of evidence and submissions finished at
    3:45 p.m. The justice of the peace required time to review the material and
    make the decision and asked that the matter be adjourned to Monday, April 18,
    if the parties were available. The matter was adjourned to April 18. On that
    date the justice of the peace gave very lengthy reasons and ordered that the
    appellant be released on conditions with his aunt as the surety.

[7]

The facts led at the bail hearing indicated that the police found two firearms
    in the appellants bedroom. Both firearms were loaded. The police also found an
    overcapacity magazine and ammunition in the residence. Crown counsel opposed
    release on the tertiary ground that detention was required to maintain
    confidence in the administration of justice. The justice of the peace found
    that this was not one of the rare cases where detention could be justified on
    the tertiary ground.

(2)

The Reasons of the Trial Judge

[8]

At the opening of the trial on February 1, 2012, the appellant applied
    for a stay of proceedings because of the delay in holding the bail hearing.
    Counsel made submissions as to whether there was a policy or directive from the
    Regional Senior Judge about special bail hearings. Counsel informed the trial
    judge that they had been unable to find any written directive or policy. The
    trial co-ordinator told counsel that if the matter is seen as a complex or
    lengthy matter it was advisable to schedule a special court date, especially if
    the matter could not be reached on the date that the person appears.

[9]

After reviewing the facts, the trial judge found that the appellants
    rights under the
Charter of Rights and Freedoms
were violated. He
    found that the justice of the peace should not have adjourned the bail hearing
    on April 6 to April 14. The trial judge pointed out that there was time in
    court on April 8 to hold the bail hearing and it should have gone ahead at that
    time. The trial judge found fault in the position of the Crown in not being
    able to proceed on April 8. The trial judge held that the Crown cannot deny a
    bail hearing because of the personal schedule of one Crown. As the trial judge
    stated, the matter should not have been adjourned to April 14 when on the
    evidence the appellant was ready to proceed with a bail hearing as early as
    April 4. The trial judge pointed out that had counsel for the appellant, not
    Mr. Halfyard, refused to consent to the adjournment and insisted that the bail
    hearing commence, an earlier bail hearing might have been obtained. The trial
    judge did, however, hold that it was the states responsibility to protect the
    young persons rights.

[10]

The
    trial judge applied the test as set out by the Supreme Court of Canada for a
    stay of proceedings as a remedy under s. 24(1) of the
Charter
. He
    found that there would be prejudice to the integrity of the justice system that
    would be manifested, perpetuated or aggravated through the conduct of the trial
    or going ahead with the case. The trial judge rejected the Crown submission
    that this was a one-time problem that would not happen again. He found that
    there was potential for recurrence. He referred to the supposed policy or
    practice direction that a special bail hearing is required if the hearing will
    take longer than two hours.

[11]

The
    trial judge considered whether there was an alternative remedy capable of
    redressing the prejudice. He found that at the opening of the trial there was
    no other remedy. While some remedy might become available at the end of the
    trial by reducing the sentence, such a remedy could only be granted if there
    was a finding of guilt. The trial judge noted that the only remedy sought by
    the appellant was a stay of proceedings and he was not seeking costs as a
    remedy.

[12]

The
    trial judge therefore turned to the final factor requiring a balance of the
    interests in favour of granting a stay against the interests that society has
    in having a final decision on the merits. The trial judge took into
    consideration that the appellant had no record and that the bail hearing should
    have been fairly straightforward. He pointed out that bail was contested only
    on the tertiary ground and indicated his view that it was a foregone conclusion
    that the appellant would have been released. However, the trial judge found
    that the most compelling aspect was the nature of the charges and the broader
    interest of the community in seeing that the charges were disposed of on their
    merits. He said as follows:

To a certain extent societys interest in the proper disposal
    of the litigation varies directly with the seriousness of the charges. These
    charges are on the serious end of the spectrum. In my view the communitys
    interest in seeing the proper disposal of such charges tips the balance.

[13]

The
    trial judge therefore refused to order a stay of proceedings. At the conclusion
    of the trial, having found the appellant guilty, the trial judge reduced the
    sentence that he might otherwise have imposed by six months in view of the
    violation of the appellants
Charter
rights.

(3)

Positions of the Parties

[14]

The
    appellant submits that the trial judge erred in refusing to order a stay of
    proceedings. He submits that the right to a bail hearing is fundamental. This
    is confirmed by provisions of the
Criminal Code
that require an
    accused be taken before a justice without unreasonable delay after arrest and
    limit the right of the Crown to obtain an adjournment. As a young person, this
    appellant had enhanced rights including the right to have his matter dealt with
    promptly. Section 29 of the
Youth Criminal Justice Act
S.C. 2002, c.1 also
    provides for enhanced rights of release. In this case, the trial judge erred in
    his assessment of the third criterion by focusing almost entirely on the
    seriousness of the offences with which the appellant was charged. The approach
    taken by the trial judge was inconsistent with the other remedial provision, s.
    24(2) of the
Charter
, which deals with exclusion of evidence, and
    where the seriousness of the offence must not be given disproportionate weight.
    Three factors required a stay of proceedings: that the appellant was a young
    person; that the Crown was responsible for the delay; and that there was a
    potential that an institutional policy mandating special bail hearings
    contributed to the delay.

[15]

The
    respondent submits that the 12 days from the date of the arrest until the bail
    hearing began must be carefully analyzed. The initial adjournment for one day
    and then the adjournment until April 6 were entirely justified. The case was a
    serious and complex one and initially involved two young persons. There was
    reason for some delay to ensure that the case was properly dealt with. The
    trial judge, having found that the test for a stay of proceedings was not made
    out, granted an appropriate remedy by reducing the sentence. When the trial
    judges reasons are read as a whole, it could not be said that he placed undue
    emphasis on the seriousness of the charges. There was a diminished problem of
    systemic delay since the delay seemed to have been the result of the calendar
    of a particular Crown counsel and misplaced reliance on a policy that did not
    exist. Finally, the trial judge was sensitive to the circumstances of the
    appellant as a young person.

(4)

Analysis

[16]

In
    a number of cases, most recently
R. v. Babos
, 2014 SCC 16, the Supreme
    Court of Canada has set out the test for when it is appropriate to stay
    proceedings as a remedy under s. 24(1), in circumstances other than a violation
    of the right to a trial within a reasonable time as guaranteed by s. 11(b) of
    the
Charter
. The remedy of a stay of proceedings is justified only in
    the clearest of cases, reflecting the fact that this is the most drastic of
    remedies available to a criminal court:
Babos
, at para. 30; and
R.
    v. Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53.

[17]

Whether
    an accused should obtain a remedy under s. 24(1) first turns on whether there has
    been a breach of the accuseds
Charter
rights. Where the
Charter
violation lies in a delay in holding a bail hearing, ss. 7, 11(d) or 11(e) can
    be implicated. In
R. v. Zarinchang
, 2010 ONCA 286, 254 C.C.C. (3d)
    133, this court found that unreasonably prolonged custody awaiting the holding
    of a bail hearing violates s. 11(e)  the right of any person charged with an
    offence not to be denied reasonable bail without just cause. In this case, a
    delay of 12 days before the appellant, with no prior record, could have his
    bail hearing was properly found by the trial judge to violate the
Charter
.
    Consistent with
Zarinchang
, this delay was a violation of s. 11(e).
    The difficult question is whether the trial judge erred in refusing to grant a
    stay of proceedings as a remedy under s. 24(1) because of this violation.

[18]

Generally,
    there are two categories of abuse of process cases: cases in which the state conduct
    compromises the fairness of the accuseds trial and cases in which the state
    conduct risks undermining the integrity of the judicial process. The
    appellants case falls within the second, or residual, category. As the trial
    judge recognized, in cases within this category the court must consider three
    requirements to determine whether a stay of proceedings is warranted. These
    requirements are summarized in
Babos
at para. 32, referring in
    particular to
Regan
:

1)       There must be prejudice to the accused's right to a
    fair trial or the integrity of the justice system that "will be
    manifested, perpetuated or aggravated through the conduct of the trial, or by
    its outcome" (
Regan
, at para. 54);

2)       There must be no alternative remedy capable of
    redressing the prejudice; and

3)       Where there is still uncertainty over whether a stay
    is warranted after steps 1) and 2), the court is required to balance the
    interests in favour of granting a stay, such as denouncing misconduct and
    preserving the integrity of the justice system, against "the interest that
    society has in having a final decision on the merits" (
ibid.
, at
    para. 57).

[19]

Where
    the accused relies upon the residual category, the first stage of the test
    requires the accused to show that the state has engaged in conduct that is
    offensive to notions of fair play and decency and that proceeding with the
    trial will be harmful to the integrity of the justice system. In
Babos
,
    Moldaver J. summarized this first requirement in these terms, at para. 35: state
    conduct will be so troublesome that having a trial - even a fair one - will
    leave the impression that the justice system condones conduct that offends
    society's sense of fair play and decency.

[20]

In
    this case, the trial judge found that this requirement was satisfied based on
    the practice direction that would necessitate an adjournment in every case
    where a bail hearing is more than two hours. On this appeal, there was some
    dispute as to whether there was such a practice direction but, on the evidence before
    him, the trial judge was entitled to make the finding that he did. In any
    event, little, if anything, turns on whether the practice direction actually
    existed. There can be no doubt that the justice of the peace believed that a
    special bail hearing was required, and remanded the appellant to custody on
    this basis. This state conduct is no less offensive to notions of fair play and
    decency in the event that it derived from a fictitious or misunderstood policy
    or practice direction, that could be implemented again.

[21]

In
    my view, there was other evidence to support the trial judges finding that the
    appellant satisfied the first requirement of the residual category. A number of
    circumstances that are not necessarily peculiar to this case could support the trial
    judges finding. Accepting that a special guns and gangs Crown had to be available
    to do the bail hearing, the circumstances did not demonstrate a commitment to
    ensuring such a Crown would be immediately available. The Crowns conduct failed
    to take into consideration the need, especially for young persons, for an early
    bail hearing. As the trial judge said: The fact that the declaration of
    principle in the
Y.C.J.A.
refers to special considerations which apply
    in respect to proceedings against young persons should compel all persons
    participating in the proceedings to guard against infringements.

[22]

The
    trial judge also found that there was no alternative remedy capable of
    redressing the prejudice to the appellants rights. The trial judges concern
    was that at this stage of the proceedings, the only alternative remedy, a
    reduction in sentence, was not available since the appellant had not yet been
    convicted. There does not appear to have been any suggestion that some other
    remedy, such as costs, would appropriately deal with the infringement, as was
    discussed in
Zarinchang
, at paras. 67-71 and
R. v. Brown
,
    2009 ONCA 633, 247 C.C.C. (3d) 11, at paras. 16-27. The trial judge rejected
    judicial condemnation of the abuse as an appropriate remedy. Although judicial
    condemnation of abuse may be an appropriate remedy in some cases, I cannot say
    that the trial judge erred in rejecting it in the context of this case. The
    need for expeditious bail hearings is reflected in s. 516 of the
Criminal
    Code
. The fact that, under this provision, no adjournment may exceed three
    clear days without the consent of the accused appears to have been ignored by
    the justice presiding on April 6 and, as pointed out by the trial judge, insufficiently
    pursued by counsel at that time.

[23]

Damages
    might have been an appropriate remedy to deter future breaches of the right to
    a prompt bail hearing:  see
Vancouver (City) v. Ward
, 2010 SCC 27,
    [2010] 2 S.C.R. 28, at para. 29. However, since the trial judge was in the
    provincial criminal court, he had no jurisdiction to award damages:
Ward
,
    at para. 58.

[24]

As
    is evident from his decision to consider the third requirement, the trial judge
    was obviously uncertain whether a stay was warranted. Although the trial judge
    did not articulate his reasons for this view, in my view the need for
    consideration of this third requirement was made out.

[25]

First,
    it was not obvious that the state conduct was so troublesome that having a fair
    trial would leave the impression that the justice system condones the conduct:
Babos
,
    at para. 35. It appears that the bail hearing could have been heard on April 8,
    but for Crown counsels schedule. There was no suggestion that a delay to April
    8 after an arrest on April 3 for serious charges was unreasonable. Realistically,
    the violation occurred because of the delay to April 14, a further delay of six
    days. This was a breach of the appellants rights, but it was not so obviously
    serious as to demand a stay of proceedings without considering the third
    requirement in
Babos
.

[26]

Second,
    in
Babos
, at para. 41, Moldaver J. suggests that the third balancing
    requirement must always be considered for the residual category:

When the conduct in question shocks the community's conscience
    and/or offends its sense of fair play and decency, it becomes less likely that
    society's interest in a full trial on the merits will prevail in the balancing
    process. But in residual category cases, balance must always be considered.

[27]

The
    appellants submissions about the trial judges treatment of the third
    requirement centred on his alleged overemphasis on the seriousness of the
    charges. In my view, the trial judge did not err. He considered all the
    relevant circumstances and his treatment of the seriousness of the charges as a
    factor was appropriate.

[28]

It
    is apparent from the trial judges reasons that he considered the relevant
    factors:

In [considering the third requirement] I am directed to look at
    the particulars of the case, the circumstances of the accused, the nature of
    the charges, and the broader interest of the community and having the
    particular charges disposed of on the merits.  Any factor can be a deciding
    factor when doing a balance. I keep in mind that the young person has no
    record, that the bail hearing in this matter should have been fairly
    straightforward.  Im saying it was a foregone conclusion that this young
    person was going to be released.

[29]

The
    trial judge proceeded to deal with what he considered the most compelling
    aspect of the balancing test: the nature of the charges and the broader
    interest of the community and seeing the charges disposed of on the merits.

[30]

The
    trial judges treatment of these factors is similar to the approach set out in
Babos
,
    at para. 41:

However, when the residual category is invoked, the balancing
    stage takes on added importance. Where prejudice to the integrity of the
    justice system is alleged, the court is asked to decide which of two options
    better protects the integrity of the system: staying the proceedings, or having
    a trial despite the impugned conduct. This inquiry necessarily demands
    balancing. The court must consider such things as the nature and seriousness of
    the impugned conduct, whether the conduct is isolated or reflects a systemic
    and ongoing problem, the circumstances of the accused, the charges he or she
    faces, and the interests of society in having the charges disposed of on the
    merits. Clearly, the more egregious the state conduct, the greater the need for
    the court to dissociate itself from it. [Footnote omitted]

[31]

In
    my view, the trial judge considered all the relevant factors. He was right to
    treat as important factors the seriousness of the charges and the broader
    community interest in having the charges disposed of on the merits. Absent an
    unreasonable conclusion, the weight to be attached to the various factors,
    including the seriousness of the offences, was a matter for the trial judge.

[32]

The
    appellant submits that the trial judge gave undue weight to the seriousness of
    the charges. The appellant further submits that an analysis similar to that
    taken with exclusion of evidence under s. 24(2) should be adopted. I disagree. That
    approach is inconsistent with the approach taken by the Supreme Court of
    Canada. As the excerpt from para. 41 of
Babos
shows, the seriousness
    of the charges is a proper consideration. The balancing that takes place as a
    result places an onerous burden on the accused, as held in
Babos
, at
    para. 44:

Undoubtedly, the balancing of societal interests that must take
    place and the "clearest of cases" threshold presents an accused who
    seeks a stay under the residual category with an onerous burden. Indeed, in the
    residual category, cases warranting a stay of proceedings will be
    "exceptional" and "very rare" (
Tobiass
, at para.
    91). But this is as it should be. It is only where the "affront to fair
    play and decency is disproportionate to the societal interest in the effective
    prosecution of criminal cases" that a stay of proceedings will be
    warranted (
R. v. Conway
, [1989] 1 S.C.R. 1659, at p. 1667).

[33]

Justice
    Moldaver emphasized the importance of the nature of the charges when
    considering the application of the accused for a stay in
Babos
, at
    para. 69:

This balancing requires weighing the seriousness of the
    misconduct against the societal interest in having a trial. At this stage, the
    very serious nature of the charges facing the appellants - 22 charges
    concerning firearms, illegal drugs, and organized crime - looms large. Society
    has a profound interest in seeing justice done by having the guilt or innocence
    of the appellants determined through a full trial on the merits. When the
    impugned misconduct - threats uttered more than a year before trial by a Crown
    no longer on the case - is weighed against society's interest in a trial, I am
    satisfied that this is not one of the "clearest of cases" where the
    exceptional remedy of a stay of proceedings is warranted. [Emphasis added.]

[34]

Undoubtedly
    this appears to lead to inconsistent results depending upon whether the accused
    is applying for relief under s. 24(1) or (2). In accordance with the decisions
    in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, and
R. v.
    Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494, the seriousness of the offence
    plays a much diminished role in the s. 24(2) analysis. The court described the
    seriousness of the offence as follows in the two cases, beginning with
Grant
,
    at para. 84:

It has been suggested that the judge should also, under this
    line of inquiry, consider the seriousness of the offence at issue. Indeed,
    Deschamps J. views this factor as very important, arguing that the more serious
    the offence, the greater society's interest in its prosecution (para. 226). In
    our view, while the seriousness of the alleged offence may be a valid
    consideration, it has the potential to cut both ways. Failure to effectively
    prosecute a serious charge due to excluded evidence may have an immediate
    impact on how people view the justice system. Yet, as discussed, it is the
    long-term repute of the justice system that is s. 24(2)'s focus. As pointed out
    in
Burlingham
, the goals furthered by s. 24(2) "operate
    independently of the type of crime for which the individual stands
    accused" (para. 51). And as Lamer J. observed in
Collins
,
    "[t]he
Charter
is designed to protect the accused from the
    majority, so the enforcement of the
Charter
must not be left to that
    majority" (p. 282). The short-term public clamour for a conviction in a
    particular case must not deafen the s. 24(2) judge to the longer-term repute of
    the administration of justice. Moreover, while the public has a heightened interest
    in seeing a determination on the merits where the offence charged is serious,
    it also has a vital interest in having a justice system that is above reproach,
    particularly where the penal stakes for the accused are high.

In
Harrison
the court held, at para. 34:

While the charged offence is serious, this factor must not take
    on disproportionate significance. As noted in
Grant
, while the public
    has a heightened interest in seeing a determination on the merits where the
    offence charged is serious, the public also has a vital interest in a justice
    system that is beyond reproach, particularly where the penal stakes for the
    accused are high.

[35]

The
    use of these different tests can appear to produce anomalous results. Under s.
    24(2), where the seriousness of the offence is not to take on disproportionate
    significance, the evidence may be excluded, typically leading to an acquittal
    in most cases. Under s. 24(1) and the
Babos
test, a stay of
    proceedings - the functional equivalent of an acquittal - may be highly
    unlikely.

[36]

These
    inconsistent results can only be explained because the courts are concerned
    with different interests. Under s. 24(1) there are a variety of remedies
    available, only some of which will lead to a stay of proceedings. A stay of
    proceedings is exceptional because it is intended to remedy conduct that was
    not used to obtain evidence but which nevertheless is such an affront to fair
    play and decency as to be disproportionate to the societal interest in the
    effective prosecution of the case.

[37]

In
    contrast, s. 24(2) is concerned with the manner in which the evidence was
    obtained and with the single remedy of exclusion of the evidence. The tests
    from the
Grant
and
Harrison
cases require the court to
    consider, as the first inquiry, the seriousness of the conduct that lead to the
    obtaining of the evidence and, at the second inquiry, the seriousness of the
    breach from the perspective of the accused. The court is not considering
    whether the state conduct shocks the communitys conscience, as under s. 24(1):
Babos
at para. 41.

[38]

Further,
    while both ss. 24(1) and (2) engage the court in a consideration whether to
    dissociate itself from the impugned conduct, the focus is different. Under s.
    24(2), the courts exclude the evidence, in part, because of the need to
    dissociate themselves from the fruits of the unlawful conduct:
Grant,
at para. 72. However, under s. 24(1), the court is not considering the fruits
    of the unlawful conduct; under the residual category, the evidence has been
    obtained and the charge can proceed through a fair trial. The court is not
    providing redress to accused for wrongs done to them:
Babos,
at para.
    39.

[39]

I
    have not been persuaded that the trial judge gave unreasonable emphasis to the
    seriousness of the charges. He weighed the various factors. That the case
    involved a 17-year old who had no prior record and who would probably have been
    released had to be given considerable weight. However, some delay in the bail
    hearing was likely given the seriousness of the charges. The bail hearing
    itself took a day to be heard and then was adjourned to give the justice an
    opportunity to consider the decision. The lengthy delay before the bail hearing
    began was unacceptable, but it was open to the trial judge to balance all the
    relevant factors and decide that the case should proceed on its merits.

[40]

I
    would not give effect to this ground of appeal.

B.

The REASONABLENESS OF THE VERDICTs

(1)      The Facts

[41]

On
    the evening of April 2, 2011, around 9:00 p.m., the police began watching the
    appellants home in preparation for executing a search warrant. At 10:40 p.m.,
    they saw a light go on and off in the main floor bedroom. Then, 20 minutes
    later, a man left the house.  The police stopped him and learned that he was
    D.P., one of the appellants friends. Just after midnight, the Emergency Task
    Force executed the warrant. Inside the house was the appellant, his co-accused
    K.A., the appellants mother and his four young siblings. After the ETF cleared
    the house, other officers searched its three floors. On the upper floor were
    three bedrooms and a bathroom. On the main floor was another bedroom, a kitchen
    and living room/dining room. The basement had couches, a television set and a
    lot of clothing. The entire house appeared cluttered and chaotic.

[42]

The
    police found the firearms in a closet in the main floor bedroom, where the
    police had earlier seen the light go on and off. The closet had bi-folding
    doors, which were open when the search officers entered. The handgun was found
    inside a grey shoe box in clear view on a shelf. The handgun was loaded. Also inside
    the box was a plastic shopping bag containing ammunition, extra magazines, a
    set of handcuffs and an extendable baton. A loaded rifle was at the back of the
    closet leaning against a wall, behind hanging clothes, along with some bags and
    other clutter. The rifle was not visible looking directly at the closet with
    the doors opened. In the bedroom, the police found a backpack that contained
    personal effects and a prescription in the name of K.A. There was a Canadian
    passport in the dresser in the name of another person and some identification
    relating to three other people, including the appellants cousin.

[43]

The
    appellants mother testified for the prosecution. The main floor bedroom
    belonged to the appellant and she rarely went inside it. She testified that she
    did not know there were other people in the house the night of the police raid,
    including the co-accused K.A. She arrived home from work around 8:00 p.m. and
    went upstairs to watch a movie with the younger children. Sometime between 8:30
    and 9:00 p.m., the appellant had come upstairs, told her that he felt sick and
    went to sleep in his sisters room because it was closer to the bathroom. The
    appellants mother checked on him several times and found him asleep in his
    sisters bedroom. She learned D.P. was present when he knocked on the bathroom
    door around 10:00 p.m. She went to the kitchen around 10:45 p.m. She testified
    that people could have come in or out of the house without her knowing.

(2)      The Reasons of the Trial Judge

[44]

The
    trial judge found that the shoe box containing the revolver was in plain view
    of anyone using the closet. The closet contained clothing suitable for a young
    male. The trial judge inferred that the appellant knew of the storage of the
    weapons and consented to their being stored in the closet. He rejected the
    theory that one of the other young men stored the weapons in the closet while
    the appellant was asleep in his sisters bedroom. The weapons had to have been
    in the house before the police began surveillance at 9:00 p.m. If anyone else
    brought the firearms into the house, it would have to have been with the
    appellants permission. He found as follows:

The speculation in which I have to engage is that the invitee
    brought these weapons into the house unbeknownst to the accused, knew that he
    would abandon control of his room by going upstairs to sleep, and then place
    the contraband in his closet without his consent. This is now nothing but
    conjecture. There is an entire lack of logic in this conclusion, because anyone
    wanting to hide weapons in someone elses house without their knowledge would
    not put them in plain view, as was the case here. Thus, I cannot conclude that
    the alternative possible conclusion is rational.

The only rational conclusion that can be drawn is that S.B. was
    in possession of the weapons and the ammunition. There will be finding of guilt
    on the 11 outstanding charges.

(3)      Analysis

[45]

In
    my view, the trial judges conclusion that the appellant had possession of the
    weapons, ammunition and other contraband was supported by the evidence and is
    not unreasonable. The uncontradicted evidence was that these items were found
    in the appellants bedroom. There was no basis for finding that the appellants
    mother or his younger siblings had brought these items into the house. The
    other young men were present with the consent and permission of the appellant.
    It could be inferred that the clothing found in the closet belonged to the
    appellant and not any of his younger siblings. The rifle, as shown in
    photographs admitted at trial, is a large gun. The box containing the handgun
    was in clear view. As counsel for the respondent points out, these were not
    small items that could have been easily secreted by a casual visitor. These
    were large, dangerous goods in the appellants bedroom that were easily visible
    to anyone with regular use of the closet. As trial counsel for the appellant
    fairly conceded, if the appellant went into the closet he could not miss them.

[46]

The
    trial judge was entitled to reject the alternative theory that someone else had
    placed the materials in the closet without the consent of the appellant. It is
    not reasonable to believe that, without the appellants consent, someone else
    would have had the opportunity to bring these items into the house and hide
    them in the appellants bedroom. And, if they wanted to hide the weapons from
    the appellant, they would not have placed them in plain view of anyone,
    especially the appellant, using the closet.

[47]

I
    would not give effect to this ground of appeal.

C.

DISPOSITION

[48]

Accordingly,
    I would dismiss the appeal.

Released: MR July 8, 2014

M. Rosenberg J.A.

I agree. E.A. Cronk
    J.A.

I agree. R.G.
    Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2014 ONCA 511

DATE: 20140702

DOCKET: C56597

Laskin, MacFarland and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren Smith

Appellant

Richard Litkowski, for the appellant

M. David Lepofsky, for the respondent

Heard: June 25, 2014

On appeal from the conviction entered on April 25, 2012
    and the sentence imposed on July 10, 2012 by Justice Peter H. Howden of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for aggravated assault and assault
    with a weapon on two grounds.  First, the trial judge commented unfairly on the
    evidence of the appellant.  Second, the trial judge erred by failing to relate
    the evidence to the elements of the two offences the appellant was convicted
    of.

[2]

On the first ground, the appellant contends that the trial judge gave
    what amounts to a
Vetrovec
warning on the appellants evidence.  He
    refers to the trial judges comments at pp. 50-51 of the charge to the jury,
    and emphasizes the sentence: This was his opinion and should be treated with
    caution for that reason.

[3]

We do not accept the appellants contention.  The trial judge cautioned
    the jury on a very narrow point  when the knife caused the injury.  In his
    evidence, the appellant never said he could see when his knife made contact
    with the complainant.  Instead, the appellant offered an after-the-fact theory
    about what likely happened.  In this context, the trial judges comment was
    fair.

[4]

On the second ground of appeal, the appellant acknowledges that the
    trial judge accurately set out the evidence in relation to the charge of
    attempted murder.  He argues, however, that the trial judge should have repeated
    the evidence in relation to the assault charges so that the jury would
    appreciate the appellants defence of accident.

[5]

We do not accept this argument.  The trial judges review of the
    evidence came shortly before he dealt with the two assault charges.  The trial
    judge told the jury that he had reviewed the evidence and that the jury should
    consider this evidence when deliberating on the aggravated assault and assault
    with a weapon charges.  The trial judge then outlined the elements of the offences
    and the appellants claim of accident.  In our view no more was required.

[6]

We add two final comments.  First, the trial judges instructions now
    challenged on appeal were not objected to by defence counsel at trial.  To the
    contrary, at the pre-charge conference defence counsel approved the trial
    judges instructions.

[7]

Second, on the evidence at trial, a good deal of which was not disputed,
    the Crowns case against the appellant was overwhelming.

[8]

The appeal is dismissed.

John Laskin J.A.

J. MacFarland J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sousa, 2014 ONCA 550

DATE: 20140721

DOCKET: C56227

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernanda Sousa

Appellant

Paul Burstein, for the appellant

Sean Doyle, for the respondent

Heard: June 26, 2014

On appeal from the conviction entered by Justice M.F.
    Khoorshed of the Ontario Court of Justice on July 23, 2012, and the sentence
    imposed on October 31, 2012.

Strathy C.J.O.:

[1]

Fernanda Sousa appeals her conviction for setting fire to her rented
    home. She was sentenced to six months imprisonment and three years probation,
    which included a term for restitution of $91,865. She seeks leave to appeal her
    sentence and asks that a conditional or intermittent sentence be imposed and
that the restitution order be deleted or varied.

[2]

Two grounds are raised on the conviction appeal. The first relates to
    the admissibility of the appellants confession to police and her utterance to
    a fire investigator. The second asserts the trial judge materially
    misapprehended evidence about the fire and its aftermath.

[3]

The appellant acknowledges that the Crown had a strong circumstantial
    case. It included evidence that:

·

her neighbour saw her leaving her home shortly before he observed
    smoke coming from the house;

·

she was the last person to leave the house on the morning of the
    fire;

·

on entering the house, the neighbour discovered the contents of a
    pot burning on the stove;

·

fire investigators discovered an iron in a second floor closet,
    sitting in the middle of a pile of burned clothing;

·

in the words of the trial judge, a serious, serious quantity of
    orange paint had been sprayed throughout the main floor of the house, on walls,
    flooring, furniture and other objects, but not on any of the expensive articles
    on the wall;

·

although the appellant claimed she had sprayed the paint the
    night before the fire because she was angry with her husband, he testified he
    had not seen any paint when he left the house earlier that morning;

·

there was a financial motive  the family business was losing
    money and the appellant had made overdue payments on the familys tenant
    insurance policy a few days before the fire and had asked the insurance agent
    for information about their coverage; and

·

after her release from police custody on arrest, the appellant went
    to see her landlord, the owner of the home, and admitted to having started the
    fire. She claimed an unknown intruder had put a knife to her throat, threatened
    that he would kill her daughter and forced her to start the fire.

[4]

The appellant was arrested two weeks after the fire. Upon her arrest,
    she was advised of her right to counsel and was cautioned. She was taken to an
    interview room. The interview was recorded. When it began, the appellant was
    again advised of her right to counsel, again told that she was being charged
    with arson, and was given a primary and secondary caution. She consulted with
    counsel. The interviewing officer repeatedly told her that she would be
    released whether she gave a statement or not.

[5]

After a lengthy interview, she admitted she started the fire, stating
    that she was depressed and suicidal as a result of her familys financial
    situation. At the suggestion of the officer and with his assistance, she wrote and
    signed a letter of apology to her landlord.

[6]

The trial judge ruled the statement voluntary and admissible.

(1)

Conviction Appeal

(a)      Admissibility of
    Statements

[7]

The appellant submits the trial judge
    erred in admitting her confession to the police and her statement to a fire
    investigator that she had removed the batteries from the smoke alarm two weeks
    before the fire.

[8]

She submits her confession should not
    have been admitted because the Crown failed to adduce the evidence of a female
    officer who allegedly threatened and assaulted her. I do not agree. Four
    officers testified on the
voir dire
, including
    the arresting officer, who was in charge of the investigation, the transporting
    officer, the scribe and the interviewing officer. An officer who was present
    throughout her arrest, transport and lodging in the cells testified that he did
    not witness any threats or promises.  Defence counsel never suggested to any of
    these witnesses that a female officer had been present, had made threats or had
    abused the appellant in any way. Given the absence of any suggestion to these
    witnesses that the statement was induced by the alleged conduct of the female
    officer, the Crown had no obligation to lead evidence on the issue. It is
    significant that defence counsel did not refer to the absence of the female officer
    in her submissions on the
voir dire
.

[9]

The appellant also asserts that the
    trial judge should have conducted a
voir dire
in relation to the evidence of the confession to the fire
    investigator on the basis that he was a person in authority. The defence did
    not request a
voir dire
and there was
    nothing in the record that ought to have alerted the trial judge to the need
    for a
voir dire
, notwithstanding the
    silence of counsel:
R. v. Hodgson
,
    [1998] 2 S.C.R. 449.  There was no evidentiary foundation on the facts of this
    case to support the conclusion that the investigator was a person in authority:
R. v. S.G.T
.
, [2010] 1 S.C.R. 688.

(b)
Use of Extrinsic Evidence

[10]

The appellant also asserts that the
    trial judge erred in using the accuracy of the appellants description of how
    she started the fire as confirmatory of its voluntariness. I agree with the
    respondent that in the extract in question, the trial judge was simply
    summarizing the Crowns position on the
voir dire
and did not use extrinsic evidence of the truth of the
    statement as a make-weight on the issue of voluntariness.

(c)
Misapprehension of the Evidence

[11]

The
    appellant asserts the trial judge misapprehended the evidence in three
    respects:

(i)

he repeated his error
    with respect to extrinsic evidence by reasoning that the appellants statement
    was likely to be true because she provided accurate details;

(ii)

he erred in finding the
    homeowners evidence about the appellants apology to be reliable because she
    had been paid by her insurance company and had no motive to lie when she had
    suffered other losses not compensated by insurance; and

(iii)

he misapprehended the evidence of the fire investigator when he found
    that fires were started in two locations in the second floor bedroom and erred
    in reasoning from this that the fires were intentionally set.

[12]

The
    decision of this court in
R. v. Morrissey

(1995), 97 C.C.C.
    (3d) 193 (C.A.) has frequently been cited for the test for whether there has
    been a misapprehension of the evidence which vitiates the conviction. In that
    case, Doherty J.A. stated at p. 221,

Where a trial judge is mistaken as to
    the substance of material parts of the evidence
and
those errors play an essential
    part in the reasoning process resulting in a conviction, then, in my view, the
    accused's conviction is not based exclusively on the evidence and is not a
    "true" verdict. If an appellant can demonstrate that the conviction
    depends on a misapprehension of the evidence then, in my view, it must follow
    that the appellant has not received a fair trial, and was the victim of a
    miscarriage of justice. This is so even if the evidence, as actually adduced at
    trial, was capable of supporting a conviction.

See
:
R. v. Lohrer
,
2004 SCC 80
, at
    para. 1; and
R. v. C.L.Y
., 2008 SCC 2, at para. 19.

(i)
Extrinsic evidence

[13]

Having
    found that the appellants confession was voluntary, the trial judge was
    entitled to consider whether it was reliable and in that regard was entitled to
    consider whether it was consistent with the objective evidence and the opinion
    of the fire investigator. I see no misapprehension of this evidence.

(ii)
The homeowners
    evidence

[14]

In
    cross-examination, the homeowner said that she had been paid by the insurance
    company in December 2010, three months after the fire. It was never suggested
    to her in cross-examination that she had a motive to lie because she had not
    been paid by the insurance company or fully compensated for the damage. The
    trial judge did not misapprehend her evidence.

(iii)
Two fires

[15]

The
    appellant claims the trial judge misapprehended the evidence of the fire
    investigator when he concluded that two fires had been started in the bedroom
    one in the closet and one on the bed  when it was not disputed that the fire
    likely spread from the closet to the bed. The appellant says the trial judge
    used this misapprehension of the evidence to find that the fire was set
    intentionally rather than accidentally.

[16]

There
    are two portions of the trial judges reasons that could support the
    appellants argument. However, in the same two references, the trial judge
    referred to the fact that two separate fires were started in the house, one
    upstairs in the bedroom closet and the other downstairs in the kitchen. This
    uncontested evidence was alone sufficient to support the trial judges
    conclusion that the occurrence of two fires in the house at the same time could
    not be explained by accident.

[17]

In
    my view, if there was a misapprehension of the evidence in this regard  and I
    am not satisfied the trial judge was mistaken as to the substance of the
    evidence  it does not rise to the
Morrissey

standard because
    the alleged error did not play an essential part in the reasoning process. The
    fact of two fires on two separate floors was sufficient to rule out accident.

(2)

Sentence Appeal

[18]

I agree with the respondent that the
    trial judge implicitly accepted the submission of the Crown that this was a
    serious personal injury offence as defined in s. 752 of the
Criminal

Code
, R.S.C. 1985, c. C-46,

and that a
    conditional sentence was unavailable for such an offence under s. 742.1, as it then
    read. As the trial judge found, the fire could have caused injury to many
    people. I also agree that in all the circumstances, a conditional sentence
    would not have been a fit disposition  there was evidence of deliberation,
    financial motive, lack of remorse and a serious risk to others. These
    circumstances called for a deterrent and denunciatory sentence.

[19]

I do, however, accept the appellants
    submission that it was inappropriate to make the restitution order a term of
    the probation. I would grant leave to appeal the sentence and vary the sentence
    to make the restitution order a free-standing order under s. 738 of the
Criminal
    Code
.

[20]

Except for the variation in the
    restitution order, I would dismiss the appeals from conviction and sentence.

Released: July 21, 2014 (GS)

G.R. Strathy C.J.O.

I agree K. Feldman J.A.

I agree David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Stilwell, 2014 ONCA 563

DATE: 20140724

DOCKET: C57562

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Appellant)

and

Christopher Stilwell

Applicant (Respondent)

Karen Papadopoulos, for the appellant

Uma Kancharla, for the respondent

Heard: March 31, 2014

On appeal from the stay of proceedings ordered by Justice
    Judith C. Beaman of the Ontario Court of Justice, dated July 31, 2013.

Pepall J.A.:

Introduction

[1]

The respondent, Christopher Stilwell, was charged with one count each of
    distributing, possessing and accessing child pornography.  Just over twenty-six
    months elapsed between the date the charges were laid on March 31, 2011, and June
    7, 2013, the anticipated conclusion of the respondents trial.

[2]

The respondent applied for a stay of proceedings, arguing that his right
    to a trial within a reasonable time under s. 11(b) of the
Canadian Charter
    of Rights and Freedoms
had been infringed. The trial judge determined that
    12.5 months of the delay was attributable to the Crown and held that this delay
    considerably exceeded the guideline of eight to ten months set out in
R. v.
    Morin
, [1992] 1 S.C.R. 771. Finding that the delay resulted in actual
    prejudice to the respondent, the trial judge stayed the charges.

[3]

The Crown appeals from this order.  It claims that the delay was reasonable
    having regard to the volume of files on the respondents computer that the investigating
    officers needed to review and categorize.  The Crown also argues that the trial
    judge erred in her assessment of the prejudice the respondent experienced as a
    result of the delay, and in her balancing of the interests s. 11(b) is designed
    to protect in deciding whether a stay was warranted.

[4]

For the reasons that follow, I accept the Crowns second submission and I
    would allow the appeal.

The Trial judges Decision

[5]

Before the trial judge, the Crown conceded that the delay merited
    scrutiny under s. 11(b) of the
Charter.
The trial judge held that the
    accused did not expressly or impliedly waive any time periods, leaving the
    entire 26 month period to be assessed.

[6]

The trial judge considered the reasons for the delay as identified in
Morin
to determine whether the delay was unreasonable: inherent time
    requirements of the case; actions of the accused; actions of the Crown; limits
    on institutional resources; and other reasons for delay.

(a)

Neutral Intake Time: Nine Months

[7]

The trial judge addressed the inherent time requirements of the case.  This
    time is neutral and is not assigned to either party.  She observed that in
Morin
,
    Sopinka J. held that the complexity of the case was an important factor in
    determining the inherent time requirements, and that complexity was affected by,
    among other things, the nature and duration of the offences, the size and
    complexity of the investigation, the work involved in preparing and delivering
    disclosure, and the need for judicial pretrial conferences and pretrial motions.
    She noted Sopinka J.s observation that certain activities common to all
    criminal matters such as retention of counsel, bail hearings, police and
    administrative paperwork and disclosure must be considered.  This intake time
    is also treated as neutral.

[8]

The Crown contended that the investigating officers had to analyze over
    244,000 image and video files, of which in excess of 9,000 were ultimately
    considered to constitute child pornography.  In addition, the Crown noted that D.C.
    Morgan, the sole officer in charge of the Child Pornography and Exploitation
    Unit of the Kingston Police Force, took an unanticipated, extended period of
    leave shortly after the respondent was charged.  Her replacement officer, D.C.
    Gobeil, continued to be responsible for his normal duties in addition to those he
    took over on her behalf.  The Crown argued that the associated delays should be
    considered in that context.

[9]

The trial judge acknowledged that by its nature, the task of viewing and
    classifying child pornography takes a huge toll on officers and necessitates
    frequent breaks.  Further, she recognized that unlike most criminal offences,
    the bulk of the investigation in child pornography cases occurs after the
    charges have been laid, which in turn delays disclosure. She referred to
R.
    v. Burnes
(24 April, 2013) Kingston (Ont.
    S.C.), a decision by Tausendfreund J.,
and
R. v. Stelpstra
(4 June, 2012) (Ont. C.J.), her own decision. Both were child pornography cases
    in which the court held that nine and eight months, respectively, were suitable
    intake periods.

[10]

The
    trial judge noted that three different lots of disclosure were released to
    defence counsel within six weeks of the laying of charges but a further package
    did not arrive until some 14 months later.  The final report was available in
    June 2012.

[11]

The
    trial judge considered the vast quantity of images, the unanticipated leave of
    the investigating officer and the inaction of defence counsel in pursuing
    disclosure.  She assigned nine of the 26 months to the intake period, thereby
    treating that time as neutral.

(b)

Delay Attributable to the Defence: Five and a Half Months

[12]

The
    trial judge proceeded to attribute to the defence one-half of the
    responsibility for the 11 months of delay between the end of the intake period,
    January 1, 2012, and the date the parties set the matter down for trial, November
    20, 2012.  In her view, the defence could have been more assertive in obtaining
    disclosure and it was unnecessary for defence counsel to await the final report
    before setting a date for trial.

[13]

The
    trial judge noted that while the final report was available as of June 20,
    2012, defence counsel did not pick it up until sometime in August and did not
    set a trial date until November.

(c)

Delay Attributable to the Crown: Five and a Half Months

[14]

The
    trial judge attributed the remaining one-half, or five and a half months of the
    11 months of delay, to the Crown.  As such, the trial judge apportioned an
    equal amount of unreasonable delay to the Crown as to the defence.  She stated,
    at p. 21:

While I am sympathetic to the police and the difficult task
    they have to perform, it is clear that the resources assigned to the completion
    of this analysis were woefully inadequate, particularly when the main
    investigator became unavailable.  It is well settled that decisions on the part
    of the state concerning the allocation of its resources cannot be used to
    justify the abrogation of the rights of an accused person.

(d)

Institutional Delay: Seven Months

[15]

The
    trial judge then considered institutional delay, that is, the period of time
    after the parties are ready for trial but during which the system cannot
    accommodate them. She calculated the institutional delay in this case as being seven
    months.  It represented the time between the date both parties were in a
    position to set the matter down for trial, November 7, 2012, and the date of
    the hearing of the application, June 7, 2013.
[1]
She considered that the seven months of institutional delay was well within
    the period deemed acceptable for our court by the Supreme Court.
[2]

[16]

The
    total time attributed to the Crown was thus 12.5 months: seven months systemic
    delay plus the aforementioned five and a half months of unreasonably

delayed disclosure.
[3]

(e)

Prejudice

[17]

The
    trial judge reviewed the contents of the affidavit filed by the respondent and
    on which he was not cross-examined.  In this affidavit, the respondent asserted
    that his life had been on hold for over two years since his arrest and that
    he lived in a state of indescribable turmoil.  He said he suffered depression
    and anxiety attacks that required medication, which in turn affected his
    ability to work.  His thoughts had turned to suicide and he experienced
    sleeplessness and nightmares in which he relived the circumstances of his arrest.
    He had gained a considerable amount of weight and developed hypertension.  He
    attended counselling, which was expensive. He was forced to quit his job at
    Loblaws and move in with his parents, although he did find new employment.  He
    believed that the uncertainty of the court process kept him from seeking better
    employment.  He felt as if he could go nowhere without his mother for fear he
    might be accused of breaching his bail conditions.  His parents had to drive
    him everywhere and he had been unable to take driving lessons because his court
    dates were every two months and he was told that he would lose any money paid
    if he missed one lesson.

[18]

The
    respondent stated that the delay affected his ability to make friends and
    socialize with his co-workers.  He asserted that he was paranoid and jumpy and
    the delay had put a strain on his relationship with his parents, his brother
    and his brothers family, and had interfered with his and his parents ability
    to interact with his elderly, ill grandparents. His brother has a young child
    with whom he was not allowed to associate because his bail conditions prevented
    him from being near children.  The respondent also said that the delay and
    court appearances had resulted in significant legal fees.

[19]

The
    trial judge noted that the Crown contended that the court ought not to place
    much weight on these assertions. The Crown argued that the respondent had never
    applied to amend any of his more restrictive bail conditions, even though the
    Crown was open to such an application.  He obtained a new full-time job near
    his parents home within two weeks of leaving his job at Loblaws and, as he
    made no mention of his current salary, the court could assume that he was
    earning at least what he was making before.

[20]

The
    Crown also argued that the hardship the respondent identified reflected the
    charges and the bail conditions, not the delay in bringing the case to trial.  For
    example, the respondents weight problem pre-dated his arrest, he made suicidal
    remarks immediately after being charged and his sleep problems stemmed from reliving
    the circumstances of his arrest, when he was awoken by police storming into his
    apartment. The Crown also observed that the respondent acknowledged that his
    mental health problems had improved through counselling. The Crown submitted
    that the respondents decision to withdraw from social settings was a result of
    the nature of the charges and the potential for social stigma associated with
    child pornography charges, not from delay.

[21]

The
    trial judge held, at p. 30: I agree that the points raised by the Crown have
    validity, and serve to undermine the Applicants argument that the delay itself
    has been the primary cause of his personal difficulties. She went on to add
    her own comments about the degree of prejudice arising from the delay, noting:

·

The respondents complaints that the delay prevented him from
    doing certain things (
e.g.
getting a drivers licence) because he had
    to attend court every two months were undercut by the fact that his lawyer
    filed a designation of counsel on her first appearance. This relieved the
    respondent of having to attend court until the actual hearing date.

·

There was no actual social stigma attached to the charges or to
    the delay because no one but his family knew about them.

·

The respondent attended counselling to seek guidance on an addictive
    personality. Any financial cost associated with this therapy did not relate to
    the fallout from the charges.

·

While the respondent might have chosen to be accompanied by his
    mother at all times, he was not required to do so.  He was simply required to reside
    with his parents, abstain from the use of electronic devices that connect to
    the internet, avoid places where young children attend and not possess
    weapons.  These conditions were not overly onerous and, in any event, the Crown
    was open to amendment of the terms.

[22]

The
    trial judge wrote, at p. 32: I find that many of the elements allegedly
    constituting prejudice stemming from the delay, arose simply by virtue of the
    fact of the charges themselves. They are not, as a consequence, relevant to the
    section 11(b) analysis.

[23]

Despite
    this, the trial judge went on to state, at pp. 32-33:

That said, I am satisfied that the Applicant has suffered some
    prejudice as a consequence of the delay in bringing his matter before the
    court. He has lived in a state of limbo for over two years, the stress of which
    has clearly created a kind of paralysis in his life. This has left him in a
    state of constant dread, making it impossible for him to move forward with his
    life in any meaningful way.

For over two years, he has eschewed intimate relationships and
    missed out on normal social activities for fear that young children might be
    included. This has interfered with his ability to bond with his co-workers and
    friends. In particular, he has been denied the opportunity to spend important
    family time with his little niece. With each passing day, it has been harder
    and harder for him to engage with the world. He has had to take medication to
    cope. I accept that this has caused him psychological harm.

Finally, the cost of having to retain a lawyer for over two
    years, for multiple court appearances and meetings, is significant and
    constitutes serious, additional financial prejudice to him.

Taken together, I am satisfied that the lengthy delay in
    bringing this matter before the court for determination has had the effect of undermining
    the Applicants security of the person, resulting in a state of prejudice to
    him.

[24]

The
    trial judge acknowledged, at p. 34, that most of the enumerated interests
    protected by s. 11(b) are not particularly applicable to the Applicants
    situation. He spent a single night in custody upon arrest and was released on
    conditions that were not particularly onerous.  His ability to make full
    answer and defence was unaffected by the delay, since the bulk of the evidence
    against him was digitally preserved. The trial judge concluded that the only
    protected interest of relevance was the personal prejudice the respondent
    suffered.

[25]

The
    trial judge continued, at pp. 34-35:

Societys interest in ensuring that a matter is tried on its
    merits must be given due consideration by the court. According to the Supreme
    Court of Canada in
R. v. Sharpe
, [2001] 1 S.C.R. 45, charges relating
    to child pornography are crimes of enormous gravity, affecting both the victims
    and society as a whole. At the same time, while the court held that society has
    a substantial and compelling interest in having such cases tried on their
    merits, the rights of the accused persons must be properly respected. The
    publics confidence cannot be allowed to be undermined by a justice system that
    permits its citizens, deemed innocent until proven guilty, to languish untried
    on an indefinite basis. In my view, it is not only in Mr. Stilwells interest,
    but also in the publics interest that he not have to wait over 26 months to
    have his charges finally concluded. This wait surpassed the bounds of
    tolerability.

(f)

Conclusion

[26]

The
    trial judge concluded, at p. 35:

I am satisfied that the 12.5 months of institutional delay
    considerably exceeds the 8 to 10 month guidelines established by the Supreme
    Court in
Morin
. Since I have made a finding that the Applicant
    suffered actual prejudice by having to wait this long to have his charges
    determined, I am satisfied that his rights under s. 11(b) of the
Charter
have
    been infringed. As a consequence, for the reasons noted, these charges will be
    stayed pursuant to s. 24(1).

Grounds of Appeal

[27]

Before
    this court, the Crown argues that a proper allocation of delay would be as
    follows:

Intake
          period: neutral

nine months

Defence
          conduct

eight and
          a half months

Unexpected
          leave of officer in charge: neutral

two and a
          half months

Institutional
          delay

six and a
          half months

[28]

The
    Crown advances five grounds of appeal.

(a)     Defence Delay

[29]

First,
    it submits that the trial judge erred in failing to attribute more of the delay
    to the respondent despite correctly finding that the respondent should have set
    a trial date prior to receipt of the final report.

[30]

There
    is no question that the trial judge was critical of the defence, stating at p. 15:

I am convinced that the Defence could have used more diligence
    in obtaining the disclosure to a level that would have satisfied her and her
    client of the case they had to meet. Her oft-repeated mantra at virtually every
    court appearance that the Crown believed that the case should be adjourned in
    two month intervals demonstrated, in my view, a certain level of complacency. I
    remain unsatisfied that it was necessary for Defence counsel to wait for the
    absolute final report before setting her case down for trial.

[31]

The
    trial judge attributed five and a half months of the delay to the defence in
    part because she found that it was unnecessary for counsel to await the final
    report before setting a trial date. The trial judge explicitly recognized a
    practice in the Kingston area, albeit a regrettable one, for defence
    counsel to await receipt of the final report before setting a matter down for
    trial. On the other hand, the trial judge found that the record did not reveal
    any communications by the Crown that the case be set down for trial prior to
    completion of the final report, nor did the Crown make any effort to enlist the
    assistance of the court to encourage the setting of a trial date in the absence
    of a final report.

[32]

I
    would not give effect to this submission.

(b)     Intake Period for Child Pornography Charges

[33]

Secondly,
    the Crown submits that the trial judge erred in applying a standard period of
    inherent delay to a child pornography case; rather, the intake period should
    have been expanded to reflect the time required to produce the final report.  The
    Crown contends that in this case 14.5 months was required.

[34]

At
    first blush, this argument has some appeal.  The larger an accuseds database
    of child-related images, the longer it will take investigating officers to view
    and categorize those images.  Disclosure to the defence in the form of a final
    report will accordingly take more time. In this case, over 244,000 files had to
    be analyzed for evidence of child pornography. However, a close review of the
    record reveals that it took the investigating officers approximately 25 hours
    in aggregate to categorize the images found on the respondents computer.

[35]

In
    oral argument, the Crown did not dispute that 25 hours was the most she could
    prove on the record, but suggested that the officers time logs might not have
    recorded every minute they were categorizing images from the respondents computer
    because they often toggled back and forth between cases. The Crown urged the court
    to focus on the volume of images the officers had to review rather than the
    recorded hours it took them to do it.

[36]

Both
    the lead investigator, D.C. Morgan, and her replacement when she went on leave,
    D.C. Gobeil, testified on the amount of time they spent categorizing images for
    the respondents case.

[37]

D.C.
    Morgans notes reflect the hours that she worked on the respondents case.  She
    testified that she did not record every single time that she categorized
    images.  However, she agreed with defence counsels assertion that she could
    not say that the total time she worked on categorization for the respondents
    file was more than 9 hours, except to guess.

[38]

D.C.
    Gobeil had some familiarity with the case because he assisted in executing the
    search warrant on March 31, 2011, the day of the respondents arrest.  He
    testified that he did 75 to 80% of the categorization of the images for this
    case.  He did not assert that there were other times he worked on the
    categorization that were not recorded in his notes.

[39]

I
    accept that child pornography investigations are unique in that the storage
    capabilities of electronic devices may result in huge universes of information
    that can only be analyzed after charges have been laid. I also recognize that
    officers categorizing these types of images need frequent breaks due to the
    emotional toll associated with the work. But I reject the Crowns suggestion
    that the categorization inherently demanded the additional five and a half
    months of time treated as Crown delay by the trial judge.  It should not
    properly be described as neutral time.  I see no error in the trial judges treatment
    of the intake and inherent time allocations.

(c)     Eleven Months Between January and November 2012

[40]

Thirdly,
    the Crown submits that the approximately five month period between delivery of
    the final report in June 2012 and the setting of a trial date in November 2012 ought
    to have been attributed to the defence, together with a material portion of the
    period between January 2012 and June 2012.

[41]

The
    trial judge addressed the 11 month period between January and November 2012.
    She observed that the defence did not pick up the final report until sometime
    in August even though it was ready on June 20, 2012.  Moreover, a trial date
    was not selected until November 20, 2012.  That said, the trial judge found
    that there was nothing in the record that reflected any Crown efforts to hasten
    disclosure. The Crown did not make inquiries of the police to ascertain their
    progress with the report.  She therefore assigned five and a half months of the
    delay for the 11 month time period to the Crown and five and a half to the
    defence, essentially finding that both sides were equally responsible for this
    delay.  I am unable to conclude that this was in error.

(d)     Leave of Absence

[42]

Fourth,
    the Crown submits that the trial judge erred in failing to treat any of the
    delay resulting from D.C. Morgans unanticipated leave of absence as neutral.  In
    particular, the Crown argues that a delay of two and a half months arose when she
    went on leave because D.C. Gobeil could not immediately start work on the
    respondents case. The Crown asserts that this delay should be classified as
    neutral to reflect the time required to find a competent interim replacement.

[43]

In
R. v. MacDougall
, [1998] 3 S.C.R. 45, at para. 45, the Supreme Court held
    that the inherent time requirements of a case are not limited to commonplace
    delays which occur in every situation, but may include delay due to
    extraordinary and unforeseeable events. This statement was a recognition that
    each case will bring its own set of facts which must be evaluated:
MacDougall
,
    at para. 45, citing
Morin
, at p. 792.

[44]

In
    my view, the trial judge did not err in failing to allocate additional neutral
    time to D.C. Morgans leave of absence.  First, the trial judge did consider
    the unanticipated leave in assigning nine months to the intake period.

[45]

Secondly,
    while the trial judge did state that D.C. Morgans leave was unexpected, D.C.
    Morgan provided two to three weeks notice of her leave, she knew that D.C.
    Gobeil would be assuming her caseload and she briefed him before she left.  The
    Crown asserts that two and a half months were required to find a competent
    replacement for D.C. Morgan, but this is not borne out by the record.  D.C.
    Gobeil was always to be her replacement.  The reason for this delay was his
    inability to start on the categorization until late July 2011, due to his
    existing workload. The problem was not the leave-taking; it was insufficient
    resources.

(e)     Prejudice and
    Balancing of Interests

[46]

Finally, the Crown submits that a correct balancing of the interests protected
    by s. 11(b) provided no justification for a stay.  The Crown argues that the
    combination of defence conduct inconsistent with a desire for a timely trial,
    minimal prejudice suffered by the respondent, the seriousness of the charges and
    the total delay that nominally exceeded the
Morin
guidelines demands
    that the case be heard on its merits.

[47]

I agree with this submission.  I do so for the following reasons.

[48]

The
    reasonableness of delay under s. 11(b) of the
Charter
is assessed by
    looking at the length of the delay, less any periods that have been waived by
    the defence, and then by taking into account the reasons for the delay, the
    prejudice to the accused, and the interests that s. 11(b) seeks to protect:
Morin
,
    at pp. 786-89;
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at para.
    18.

[49]

In
R. v. Bennett
(1991), 3 O.R. (3d) 193 (C.A.), affd [1992] 2 S.C.R.
    168, Arbour J.A. (as she then was) stated, at p. 211: Ultimately, it is the
    reasonableness
of the total period of time
that has to be assessed in
    the light of the reasons that explain its constituent parts (emphasis added).

[50]

In
    the case under appeal, the trial judge determined that the entire 26 month and seven
    day period of delay surpassed the bounds of tolerability, but in reaching
    this conclusion, she did not revisit her analysis of the time periods that
    comprised that final tally.

[51]

While
    over 26 months elapsed between the respondents arrest and the s. 11(b)
    hearing, 14.5 of those months did not count against the Crown for s. 11(b)
    purposes (nine months of neutral intake plus five and a half months of defence
    delay).  The trial judge further found that the seven months of institutional
    delay was well within the period deemed acceptable by the Supreme Court.
    Indeed, this institutional delay was actually shorter than the eight to ten
    months guideline set out in
Morin
. The trial judge concluded that only
    five and a half months of the 26 month total was
unreasonable
delay
    attributed to the Crown.

[52]

Furthermore,
    the trial judge characterized the 12.5 months (the total of Crown and
    institutional delay) as considerably exceeding the
Morin
guideline
    of eight to ten months. With respect, I disagree.  When regard is had to the
    minimal prejudice suffered by the respondent, discussed below, this
    characterization is misplaced.   As held by this court in
R. v. Tran
,
    2012 ONCA 18, 287 O.A.C. 94, at para. 63:

The
Morin
guideline for delay in the Ontario Court of
    Justice is eight to ten months.  However, the guideline is just that: a
    guideline, not a limitation period.  Deviations of several months in either
    direction can be justified by the presence or absence of prejudice:
Morin
,
    at p. 807.

[53]

Additionally,
    while earlier in her analysis the trial judge found that the respondent could
    have, and should have, been more diligent in moving the case forward, she did
    not factor the respondents own contribution to the delay into her prejudice
    analysis.  In
Morin
, Sopinka J. held, at p. 802, that inaction by an
    accused may be relevant in assessing the degree of prejudice:

Action or non-action by the accused which is inconsistent with
    a desire for a timely trial is something that the court must consider. [T]he
    court must be careful not to subvert the principle that there is no legal
    obligation on the accused to assert the right [to a speedy trial].  Inaction
    may, however, be relevant in assessing the degree of prejudice, if any, that an
    accused has suffered as a result of delay.
Conduct of the accused falling
    short of waiver may be relied on to negative prejudice.
[Emphasis added.]

[54]

There
    were nine status court hearings between June 2011 and November 2012. In my
    view, if the trial judge thought that the defence should have moved more
    quickly in setting a date and that not all these appearances were necessary,
    that should have been reflected in her prejudice analysis. Instead, the trial
    judge held that the cost of multiple court appearances and meetings over two
    years constituted serious, additional financial prejudice to the respondent.
    On the trial judges own findings, some of this cost was unnecessary and was
    the result of the respondents (or his counsels) considered choices.

[55]

The
    period of unreasonable Crown delay must also be balanced against the minimal
    prejudice the respondent experienced
as a result of the delay
as
    opposed to the fact of the charges. In my view, the trial judge did not
    adequately make this distinction.

[56]

The
    trial judge found that the respondent suffered "personal prejudice"
    because he could not socialize with friends, family and co-workers for fear
    there may be children present. The bail conditions imposed the restriction on
    being near children. Contrary to the trial judge's finding, the outstanding
    criminal charges did not prevent the respondent from engaging in
    age-appropriate social activities such as dating or meeting friends after work.

[57]

On
    the trial judges own findings, the delay did not adversely affect the
    respondents liberty interests (he spent one night in custody, and thereafter
    was released under liberal bail conditions).  He also secured full-time
    employment within weeks of being charged.

[58]

Nor
    did the delay impair the respondents fair trial rights, because the evidence
    against him was digitally preserved and did not rely on witnesses memories.   This
    factor, while not dispositive, distinguishes this case from those where delay
    undermines an accuseds ability to make full answer and defence.

[59]

In
Godin
, for example, the accused was charged with sexual assault in
    circumstances where the complainants rape kit included a DNA profile of semen
    that did not match the accuseds DNA.  The Crowns delay in disclosing the DNA
    analysis had the potential to undermine the accuseds ability to cross-examine
    relevant witnesses on when the complainant last had sex.  This led to a risk of
    prejudice to the accuseds ability to make full answer and defence.
[4]

[60]

I
    also note that in the case under appeal, the respondent never applied to vary
    bail even though the Crown expressed a willingness to amend his release terms.
    While his bail conditions are relevant in assessing the degree of prejudice he suffered,
    the respondents failure to seek a variation of those conditions undercuts the trial
    judges conclusion that the respondent suffered personal prejudice serious
    enough to warrant a stay of proceedings.

[61]

Lastly,
    in my view, while the trial judge did not err in finding some prejudice, she significantly
    under-emphasized the seriousness of the charges against the respondent and
    societys interest in having them tried on their merits.  At p. 787 of
Morin
,
    Sopinka J. stated that as the seriousness of the offence increases, so does the
    societal demand that the accused be brought to trial.   Further, as McLachlin
    J. (as she then was) stated in her concurring reasons in
Morin
, at p.
    812:
Where the accused suffers little or no prejudice, it
    is clear that the consistently important interest of bringing those charged
    with criminal offences to trial outweighs the accused's and society's interest
    in obtaining a stay of proceedings on account of delay, because the consequences
    of the delay are not great.

[62]

The
    police found over 9000 images and 60 videos of child pornography on the
    respondents computer.  D.C. Gobeil testified that he was struck by the volume
    of pictures, noting:

[S]ometimes when you categorize images on a computer you will
    get long streaks of sort of normal, run of the mill everyday surfing habits.
    People read news.  People read internet sites.  Just about every picture [on
    the respondents computer] was pictures of children, whether they were clothed
    or unclothed or partially clothed.

[63]

Most
    recently, the Supreme Court commented on the gravity of child pornography
    offences, albeit in the context of a s. 8
Charter
infringement, in
R.
    v. Spencer
, 2014 SCC 43. In that case, the accused was charged with
    possession and distribution of child pornography.  The Supreme Court held that
    the accuseds s. 8 rights had been infringed because the police had obtained
    his IP address without prior judicial authorization.  At para. 78, the Supreme
    Court described the impact on the accuseds
Charter
-protected rights
    as serious but nonetheless determined that the evidence should not be
    excluded.  Cromwell J. explained, at para. 80:

Society has both a strong interest in the adjudication of the
    case and also in ensuring that the justice system remains above reproach in its
    treatment of those charged with serious offences.  If the evidence is excluded,
    the Crown will effectively have no case.  The impugned evidence (the electronic
    files containing child pornography) is reliable and was admitted by the defence
    to constitute child pornography.
Society undoubtedly has an interest in
    seeing a full and fair trial based on reliable evidence, and all the more so
    for a crime which implicates the safety of children
. [Emphasis added.]

[64]

I
    recognize that the judicial balancing task under s. 8 of the
Charter
is different

than it is under s.
    11(b) of the
Charter
.  Nonetheless, the public interest in having
    crimes against children prosecuted on their merits remains the same.  The
    public interest in trying these charges is obvious and compelling.

Conclusion

[65]

I
    agree with the trial judge that the Crown delay in disclosing the final report
    was clearly disproportionate to the time spent preparing it.  In my view,
    however, this fact should not overwhelm the analysis.  On the trial judges own
    findings, the delay in disclosing the final report accounted for only five and
    a half months of the total 26 month period.  The bulk of the time was taken up
    by neutral intake time (nine months), defence delay (five and a half months)
    and reasonable institutional delay (seven months).  When the five and a half
    months of unreasonable Crown delay is added to the institutional delay, the
    total is 12.5 months  beyond the
Morin
guideline, but not egregiously
    so.  When this delay is balanced against the minimal prejudice the respondent
    experienced and the grave seriousness of the charges against him, the delay,
    while not ideal, was not unreasonable.

[66]

For
    these reasons, I would allow the appeal, set aside the stay, and order that the
    matter proceed to trial.

Released: SEP July 24, 2014

S.E. Pepall J.A.

I agree. E.A. Cronk
    J.A.

I agree. M. Tulloch
    J.A.

[1]
When the parties finally set the matter down for trial on November 20, 2012,
    the first available trial date when all witnesses were available was June 7,
    2013. The respondent filed the underlying
Charter
application prior to
    trial, and it was heard on June 7, 2013.

[2]
The Crown conceded that the time from the set date to the s. 11(b) hearing
    should be considered institutional delay.

[3]
The trial judges calculations actually add up to 27 months although the delay
    was 26 months and 7 days.  The discrepancy arises from a rounding up of the
    time between the end of the intake period (January 1, 2012) and the date the
    matter was set down for trial (November 20, 2012) and in commencing the
    institutional delay from November 7, 2012, the status court date, rather than
    November 20, 2012 when the trial date was selected.

[4]

Godin
also differed in other material respects from this case; for
    example, virtually all of the delay was attributable to the Crown, and the
    defence tried in vain to move the case forward more quickly.