This week’s top three summaries: R v Reves, 2025 ABCA 5: s.715.1 #statements, R v SLB, 2024 ABCA 412: #historical memory, and R v RB-C, 2024 ONCA 930: 11(b) post-conviction
R v Reves, 2025 ABCA 5
[January 9, 2025] Admissibility of s.715.1 Statements: Context of Prior Disclosures [Bernette Ho, Jane Fagnan, Karan M. Shaner JJ.A.]
AUTHOR’S NOTE: This case offers a significant reminder of the procedural and substantive safeguards required when the Crown seeks to rely on section 715.1 of the Criminal Code to admit a child witness’s out-of-court statement as their testimony. The decision highlights the critical role of trial judges as gatekeepers and emphasizes the importance of ensuring that juries approach such evidence with appropriate caution.
Key Points and Analysis:
- Section 715.1 Applications:
- Section 715.1 allows the Crown, after a successful voir dire, to rely on a child’s recorded out-of-court statement as their evidence-in-chief.
- This provision is designed to reduce the stress of testifying for young witnesses while preserving the reliability of their evidence.
- However, the Crown’s discretion to select which statement to lead must be exercised transparently, with full consideration of fairness to the accused.
- Full Disclosure of Prior Statements:
- The court stressed that the trial judge must be presented with all prior statements given by the youth witness during the voir dire.
- This ensures the judge can:
- Assess the risk of embellishment or suggestion stemming from repeated questioning.
- Identify inconsistencies or contradictions between the various statements.
- Evaluate whether leading questions influenced the content of the statement the Crown wishes to introduce.
- Failure to submit prior statements prevents the judge from performing their gatekeeping role and undermines the fairness of the trial process.
- Gatekeeping and Judicial Scrutiny:
- Trial judges must carefully vet the proposed statement for:
- Reliability: Was the statement made voluntarily, and under what circumstances?
- Influence: Were there any external pressures, such as coaching or suggestion?
- Consistency: Does the statement align with or contradict prior statements?
- A judge’s oversight is critical to preventing undue prejudice to the accused.
- Trial judges must carefully vet the proposed statement for:
- Jury Instructions:
- When such statements are admitted, jurors must receive specific instructions regarding:
- The potential risks of relying on recorded statements, including suggestion, leading questioning, or subsequent embellishment.
- The importance of not giving undue weight to the recorded statement, especially if they have access to review it at their leisure.
- Without such instructions, there is a significant risk of unfair emphasis on the recorded evidence, which could distort the jury’s deliberations.
- When such statements are admitted, jurors must receive specific instructions regarding:
Practical Implications:
- For Defence Counsel:
- This case reinforces the importance of challenging the admission of such statements during the voir dire by scrutinizing:
- The circumstances under which they were made.
- Any inconsistencies or external influences that might undermine their reliability.
- Defence counsel should also advocate for robust jury instructions to mitigate the risks of undue emphasis.
- This case reinforces the importance of challenging the admission of such statements during the voir dire by scrutinizing:
- For Trial Judges:
- Judges must adopt a proactive role in the voir dire process, insisting on full disclosure and rigorously assessing the admissibility of statements.
- Clear, balanced jury instructions are essential to safeguard the accused’s right to a fair trial.
Conclusion:
This case serves as a crucial reminder of the safeguards that must be in place when admitting youth out-of-court statements under section 715.1. By emphasizing the need for full disclosure and rigorous judicial oversight, the decision underscores the fundamental principle that all evidence must be scrutinized to ensure trial fairness. Proper jury instructions remain essential to mitigate the risks inherent in such evidence, ensuring a just outcome for all parties.
II. Background
[3] The complainant slept overnight at the appellant’s house in Edmonton in mid-January 2019. She was just over 10 years old at the time. Her father and the appellant had become acquainted, and the complainant said she had become friends with the appellant’s daughter.
[4] In the summer of 2020, the complainant disclosed to her caregiver that the appellant sexually assaulted her during the sleepover. The caregiver told the complainant’s father, who contacted the RCMP near where he lived with the complainant. On August 10, 2020, the complainant gave a video-recorded statement to the RCMP (the “first statement”).
[5] The RCMP then referred the case to the Edmonton Police Service, which assigned the investigation to a detective on January 7, 2021. The detective obtained a video-recorded statement from the complainant on January 15, 2021, at the Zebra Centre in Edmonton (the “Zebra statement”).
[6] The Crown applied to have the Zebra statement admitted as the complainant’s evidence under s 715.1 of the Criminal Code.
[8] The main issue on the voir dire was whether the Zebra statement had been made within a reasonable time following the alleged offence. The trial judge determined it had been and that it also met the other criteria for admission. Accordingly, she granted the Crown’s application to tender it as the complainant’s evidence in chief. It was marked as an exhibit and subsequently provided to the jury for its use during deliberations. The trial judge did not give specific instructions or cautions to the jury regarding the Zebra statement’s use or what to consider when assessing it and assigning weight.
[9] In closing submissions to the jury, the appellant’s trial counsel raised the possibility that the complainant had fabricated the allegations. In response, Crown counsel said the complainant had no motive to lie. Consequently, the trial judge included an instruction on the complainant’s motive, if any, to fabricate the events. The instruction was an adaptation of a general instruction on an accused’s motive, rather than a witness’ motive to fabricate. The instruction did not include a warning that the appellant was not required to prove the complainant had a motive to fabricate the events.
V. Analysis
a. The Admission of the Zebra Statement
[17] Section 715.1 of the Criminal Code is a statutory exception to the rule against hearsay evidence. It permits a child-complainant’s video-recorded out-of-court statement to be admitted for the truth of is contents if enumerated statutory conditions are met. R v F(CC), [1997] 3 SCR 1183 at para 17. Section 715.1 is intended to assist courts in their truth-seeking function by creating an admissible record of what is likely to be a child’s best recollection of an event. Additionally, it is intended to diminish the likelihood that further injury will be inflicted on a child witness by having to repeat their evidence in court proceedings. R v F(CC) at para 22.
[18] The conditions of admissibility are set out in s 715.1. They are:
a. the witness is under 18 at the time of the alleged offence;
b. the video recording is made within a reasonable time after the alleged offence;
c. the witness describes the acts complained of in the statement;
d. while testifying, the witness adopts the contents of the statement; and
e. the presiding judge is of the opinion that admitting the statement would not interfere with the proper administration of justice.
Notwithstanding that the first four conditions are met, the trial judge must still exercise their “critical gatekeeping function before admitting the statement.” R v JDC, 2023 ABCA 255 at para 4.
[19] As noted, the main issue on the voir dire was whether the Zebra statement was made within a reasonable time of the alleged offence. The primary arguments before the trial judge centered on whether the delay, from the time of the alleged offence to the time of the Zebra statement, was reasonable in the circumstances.
[21] Where, as here, there is delay in making the statement, the question of whether the statement has nevertheless been made within a reasonable time is informed by whether there is a satisfactory explanation for the delay. That analysis requires consideration of a number of factors in addition to the length of the delay, including: the child’s age; the child’s relationship with the accused; the length of time and frequency of the offending behaviour; the seriousness of the offence; any developmental stages the child may have gone through; and any evidence that something might have happened during the relevant time which may have influenced the child or negatively affected the statement’s reliability. R v JM, 2022 MBCA 25 at para 31; R v RAH at para 42.
[22] The trial judge considered the time which had elapsed between the date of the alleged offence and when the complainant made the Zebra statement. She stated, erroneously, that the total delay was 19 months, rather than 24; however, it is clear from her reasons that she understood the relevant time period ran from the date of the alleged offence to when the Zebra statement was taken, and she considered the additional five-month delay between the first statement and the Zebra statement as part of that time. She found the time it took to obtain the Zebra statement fell within the range of acceptability as set out in various judicial authorities, having regard to the complainant’s age at the time of the alleged incident and her age when she disclosed the allegations.
[25] The trial judge concluded the fact the complainant gave the first statement did not make the Zebra statement inadmissible, noting questions about embellishment, fabrication, and the use of leading questions would be left for the jury in its determination of ultimate reliability.
[26] Canadian jurisprudence on the effect of a previous statement in an application under s 715.1 is scarce; however, the appellant’s counsel directed the Court to two relevant cases, R v Wiebe, 2016 MBPC 55, and R v DMD, 2019 BCSC 1027. Although neither is binding on this Court, they are instructive and assist in understanding the problem with the approach the trial judge took in considering the effect of the first statement. We note that no jurisprudence on this issue was provided to the trial judge.
[27] In Wiebe, the complainant gave two videotaped statements, one four days after the alleged offence and a second nine days later. The first statement was not in evidence on the voir dire. There was evidence that the complainant’s boyfriend was in the interview room and may have had some influence over the complainant. The second statement was not admitted as the trial judge found the prejudicial effect outweighed the probative value. Wiebe at para 33. The trial judge also observed that, without examining the first statement, it was not possible to assess what effect the first statement may have had on the second. Wiebe at para 29. Additionally, the trial judge expressed some concerns with the “investigative technique”, noting that the interviewing officer used suggestive and at times repetitive questions to elicit answers from the complainant, occasionally offering details about the offence that the complainant had not (yet) provided. Wiebe at paras 30-31.
[28] Wiebe was considered in DMD. As in Wiebe, the complainant in DMD gave two videorecorded statements. The first statement was problematic because of the interview techniques used, including leading questions, and the fact that there was a third party in the room who interjected on key points. A second statement was taken a few days later, which was ultimately admitted under s 715.1. The trial judge concluded that, notwithstanding the limitations, admitting the second statement would not interfere with the proper administration of justice. The distinguishing feature in DMD is that the first statement was part of the evidence on the voir dire, which permitted the trial judge to assess its effects on the second.
[29] In this case, as in Wiebe, the first statement itself was not part of the evidence the Crown tendered during the voir dire. Crown counsel advised the trial judge of the first statement’s existence and stated she was not seeking to admit it under s 715.1 because it did not meet the statutory requirements. However, the first statement would have been an important piece of evidence in assessing the threshold reliability of the Zebra statement. It played a prominent role in how the detective who took the Zebra statement conducted the interview, and it is clear from the Zebra statement that the detective used the information from the first statement to form the basis of many of the questions he put to the complainant. A number of the questions were leading or included suggestions to the complainant. Some went to the heart of the allegations, most notably: when and how the appellant allegedly wrapped his arms around the complainant; that the complainant had a dream she was being raped; that the appellant was “fingering” and licking the complainant; and that he tried to pull her clothes off.
[30]….The omission of the first statement resulted in an incomplete assessment of the Zebra statement’s threshold reliability. Without it, the trial judge simply could not determine the extent to which it may have influenced the complainant’s evidence in the Zebra statement, including whether it led to embellishment or fabrication. These and other risks had to be considered and assessed by the trial judge as part of the inquiry into threshold reliability and overall admissibility s 715.1.
b. Jury Instructions
[31] The jury was not adequately instructed on how the Zebra statement was to be assessed, nor with respect to the complainant’s motive to fabricate the events.
[33] In our view, the instructions did not sufficiently attenuate the risk of over-emphasis and further, they did not adequately equip jury members with the law they needed to know to properly assess the complainant’s evidence. Trial fairness was compromised as a result.
[34] The jury should have been specifically instructed not to place undue emphasis on the statement and to consider it in the context of the rest of the evidence, including the complainant’s cross examination. Additionally, instructions were required on what the jury would need to consider in assessing the Zebra statement, including: the fact that the first statement was given several months earlier and the consequent risk of embellishment and suggestion; the fact that the complainant was led through key parts of her evidence in the Zebra statement and how that might diminish its reliability by suggesting answers; and inconsistencies in the complainant’s evidence. These concerns were identified by the trial judge during the voir dire but were not reproduced in the jury instructions.
[35]….The jury was also invited to watch and listen to the Zebra statement as many times as the members wished, to determine who was speaking and what was being said, which compounded the risk it would be over-emphasized during jury deliberations.
[36] The instructions on the complainant’s motive to fabricate were also insufficient.
[37] In submissions at trial, the appellant’s counsel argued the complainant had fabricated the event and accordingly, both counsel requested an instruction on this issue. Ultimately, the instructions on the complainant’s motive to fabricate were as follows:
You have heard counsel speak about motive, particularly with respect to whether [the complainant] had any motive to fabricate or lie about having been touched sexually . . .When we speak of motive, we are referring to the reason a person did what he or she did. Keep in mind that a person may do something whether the person had a motive for doing it or not, but motive can be relevant. If a person had a reason for doing a certain thing, then you might conclude it was more likely that he or she in fact did that thing and did so intentionally. Conversely, if you find that a person had no reason to do a certain thing, that might cause you to doubt whether he or she did that thing. It is for you to decide whether the evidence establishes that [the complainant] had a motive or whether there is no evidence of any motive. Further, it is up to you to decide what weight, if any, you will give to the evidence of motive, if any, and whether any motive or absence of motive causes you to conclude whether the Crown has proven its case beyond a reasonable doubt or not.
AR 32, ll 2-15
[38] These instructions are problematic in two respects. First, they do not include a warning to the jury that the absence of evidence that the complainant had a motive to fabricate did not equate to evidence she was telling the truth. Second, they do not include an instruction that raising the possibility of fabrication does not shift the burden of proof to the appellant and require him to either demonstrate the complainant had a motive to fabricate or to explain why she made the allegations. R v Gerrard, 2022 SCC 13 at para 4. See also R v Batte (2000), 49 OR (3d) 321 at paras 120-21 (CA).
V. Disposition
[40] The appeal is granted. The conviction is set aside, and a new trial is ordered.
R v SLB, 2024 ABCA 412
[December 18, 2024] Accused Memory of Events Occurring in the Distant Past, Unexplained Limitation of Credibility Effects on Complainant Evidence [Dawn Pentelechuk, William T. de Wit, April Grosse JJ.A.]
AUTHOR’S NOTE: This case illustrates critical concerns about credibility assessments in historical sexual assault trials, particularly the asymmetry in evaluating inconsistencies in the testimonies of the accused and complainants. The decision underscores the need for a careful, even-handed approach to credibility and reliability, especially given the significant passage of time and the unique challenges such cases present.
Key Issues and Analysis:
- Inconsistent Standards for Credibility:
- Accused’s Testimony:
- The accused’s credibility was undermined due to minor inconsistencies regarding unrelated historical facts, such as the year he moved to the city (30 years ago) or whether he first lived in a townhouse or apartment.
- These details, while peripheral to the allegations, were treated as grounds for discounting his testimony, despite the inevitable challenges of recalling such details after decades.
- Complainant’s Testimony:
- The complainant’s evidence, in contrast, contained inconsistencies regarding the nature of the alleged acts, particularly the addition of penetrative acts only after leading questions by police.
- Despite this, the trial judge failed to fully address the impact of these inconsistencies on the complainant’s overall credibility and reliability.
- This disparity suggests that the judge applied a more lenient standard to the complainant’s testimony, which raises fairness concerns.
- Accused’s Testimony:
- Challenges of Historical Sexual Assault Cases:
- Historical cases inherently involve faded memories, incomplete records, and greater reliance on testimony rather than corroborative evidence.
- Minor discrepancies in the accused’s testimony are inevitable after decades and should not automatically undermine credibility unless they directly relate to the allegations.
- Similarly, inconsistencies in the complainant’s testimony, particularly regarding key aspects of the alleged offences, require rigorous scrutiny as they can significantly impact the reliability of the evidence.
- Judicial Duty to Explain Credibility Findings:
- Trial judges must provide clear, reasoned explanations for how they assess credibility and reliability, especially when inconsistencies are present in both parties’ testimony.
- This includes explaining why certain inconsistencies (e.g., regarding living arrangements) undermine the accused’s credibility, while others (e.g., the complainant’s evolving allegations) do not impact the complainant’s evidence.
- Without such explanations, appellate courts may find that the judgment lacks transparency and fairness.
Conclusion:
This case serves as a reminder of the challenges inherent in historical sexual assault trials and the critical importance of consistent, transparent credibility assessments. Courts must avoid the tendency to overly discount the accused’s testimony due to minor inconsistencies unrelated to the allegations, while failing to fully scrutinize material inconsistencies in the complainant’s evidence. Fairness demands equal rigor in assessing both sides, particularly when memory is at the core of the dispute.
[1] The appellant, SLB, appeals his convictions for sexual interference contrary to section 151 of the Criminal Code and assault contrary to section 266 of the Criminal Code. Between 1990 and 1992 when the complainant, his step-daughter, was three to five years old, the appellant was alleged to have touched her on and inside her vagina and used a belt or wooden spoon to hit the complainant on her buttocks….
[2] The main issue was credibility. The appellant made a bare denial of any sexual touching or the use of a spoon or belt. The trial judge held that the complainant’s evidence proved guilt beyond a reasonable doubt even though there were inconsistencies in her evidence. The trial judge completely rejected the evidence of the appellant primarily because he could not remember details about when he had moved more than 30 years earlier. The trial judge found the appellant’s credibility was damaged to such an extent that his evidence could not raise a reasonable doubt.
[9] The appellant gave evidence. He denied ever touching the complainant sexually or in the manner that she had alleged and denied hitting her with a spoon or belt. He testified that he had disciplined her by using his hand to hit her buttocks.
[10] The appellant admitted to being unsure of the year when he, the complainant, and her mother moved to Hinton, Alberta. It was in 1990 or 1991. The complainant and her mother agreed with the appellant that they had lived in an apartment and townhouse in Hinton but the appellant admitted that he could not remember which they had lived in first.
[12] In his reasons for judgment, the trial judge reviewed some of the appellant’s evidence and then rejected his evidence stating:
The bare denial of the accused does make it more difficult to assess the credibility of the accused. However, I do not believe the evidence of the accused, nor does it raise a reasonable doubt.
I find the accused’s evidence internally inconsistent, that he was not consistent on dates and places, where they moved to Hinton and where they lived first and then next. I find the accused’s evidence was clear on matters relating to work details, such as the companies he worked for and the shifts he worked and the order he was employed by those companies.
Discussion
[19] The appeal is allowed, for the reasons that follow, on grounds 1, 3 and 4 and a new trial is ordered. It is therefore unnecessary to address the remaining grounds of appeal.
Ground 1. Reaching an unreasonable verdict in respect of the alleged sexual assault, without any explanation that provides a meaningful basis for appellate review
[23] Defence counsel also put to the complainant that when she first gave her statement to the police officer, she did not “mention him inserting his fingers in your vagina”. Defence counsel then put to her that it was only later in her statement when asked by the police officer, “He touched you?”, that she said he “put his fingers in my vagina”. The complainant agreed.
[24] The trial judge, in his reasons, recognized that the complainant had not mentioned that the appellant had put his fingers in her vagina until after the police officer had suggested this, but stated, “I find that [the complainant] clarified this in her testimony, and I accept her testimony in court as reliable and credible”. Later in his reasons the trial judge stated, “I am not convinced beyond a reasonable doubt that the accused’s tongue or fingers penetrated the complainant’s vagina”. He did not explain why he had a reasonable doubt with respect to this evidence.
[25] Without explanation, the trial judge’s unqualified determination that the complainant was reliable and credible is inconsistent with his finding that he had a reasonable doubt whether the appellant’s fingers and tongue had penetrated her vagina. The trial judge did not explain why he had a reasonable doubt regarding the evidence of penetration and why that reasonable doubt did not apply to the other evidence of sexual touching.
[26] If a reasonable doubt applied to the most serious allegation of sexual touching, why did it not apply to the other evidence of sexual touching? There is no indication in the trial judge’s reasons or the record of the trial.
[28] It is possible the trial judge could have explained this seeming contradiction but he did not.
[29] The Supreme Court of Canada has repeatedly explained the need for reasons by a trial judge. They function to inform the losing party why they lost, allow for meaningful appellate review and satisfy the public that justice has been done. See R v Bean, 2024 ABCA 339 at paras 52-54, citing R v GF, 2021 SCC 20 at paras 68-70, 76, R v Dinardo, 2008 SCC 24 at para 27, R v Sheppard, 2002 SCC 26 at para 55, R v REM, 2008 SCC 51 at paras 15, 17.
[33] Appellate courts are not to finely parse a trial judge’s reasons in search of error but must apply a functional and contextual reading in light of the circumstances of the case. Succinctly put, the task is to “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: GF at para 69. As we explained, the trial judge did not meet this standard; the pathway to the appellant’s conviction is not apparent from the reasons or the record as a whole. In our view, the record does not reveal why the trial judge had a reasonable doubt regarding the evidence of penetration but no reasonable doubt regarding the other evidence of sexual touching which occurred as part of the same incident.
[36] Determination of credibility requires the assessment of inconsistencies and contradictions in a witness’s testimony….
[37] It is not an error of law for a trial judge to fail to indicate all relevant considerations or mention all aspects of the evidence. Nor does a trial judge need to resolve every inconsistency in a witness’s evidence in order to rely on their evidence: R v Burns, [1994] 1 SCR 656, [1994] SCJ No 30 at paras 17-18, R v MJL, 2021 ABCA 41 at para 11. However, findings of credibility that are clearly wrong, unsupported by the evidence or otherwise unreasonable constitute an error of law. See R v Griffin, 2018 ABCA 277 at para 10. Significant inconsistencies should be addressed when they are important to an assessment of credibility. See R v RA, 2017 ONCA 714 at para 45.
[38] Recent cases from the Supreme Court of Canada set out what constitutes a significant inconsistency. In R v B (HS), 2008 SCC 52, the Supreme Court of Canada held the trial judge did not find the complainant’s testimony to be undermined by inconsistencies and contradictions on peripheral matters when it could be inferred “there remained a body of credible evidence capable of proving the offences beyond a reasonable doubt” at para 15.
Complainant’s Credibility
[40] As discussed above, the complainant’s initial statement to the police did not state that the appellant put his fingers in her vagina but only mentioned it when the police officer asked her if the appellant had touched her. Additionally, the complainant did not state that the appellant, after putting his fingers in her vagina, then placed them in his mouth and tasted them.
[42] The weight to be given to inconsistencies in a witness’s evidence is generally within the purview of the trial judge. Nor is it necessary for a trial judge to label an inconsistency as “peripheral” or “core”, but here, the trial judge dismissed the complainant’s inconsistent testimony on the sexual assault by finding the inconsistencies to be “minor”: R v Bouvier, 2024 ABCA 123 at para 20. This was a misapprehension of the evidence as the inconsistencies regarding the sexual assault itself were neither minor nor peripheral. Such inconsistencies must be grappled with and reconciled by the trial judge. That did not occur here. A trial judge’s description of inconsistencies as minor or peripheral can indicate that the trial judge failed to appreciate the nature, extent and materiality of the inconsistencies. See R v Roth, 2020 BCCA 240 at paras 124-125. Failure to give proper effect to evidence on a material point results in a misapprehension of the evidence resulting in a miscarriage of justice. See R v Habte, 2020 ABCA 476 at para 13, citing R v Morrisey (1995), 22 OR (3d) 53514, 1995 CarswellOnt 18 at para 83. Failing to appreciate an inconsistency or the effect of an inconsistency on material evidence will warrant appellate intervention. See R v MPJ, 2024 ABCA 35 at para 12, R v Wright, 2019 BCCA 327 at para 22.
[43] In our view, this was a misapprehension of the evidence in that the trial judge failed to appreciate the significance and effect of the complainant’s inconsistencies when determining her credibility.
Appellant’s Credibility
[44] When assessing the appellant’s credibility, the trial judge gave undue importance to the appellant’s inability to remember the year he moved to Hinton and whether they first lived in an apartment or a townhouse. This was the only example of an inconsistency in the appellant’s evidence given by the trial judge for completely rejecting the appellant’s evidence.
[45]….R v Hilton, 2016 ABCA 397….
[46] Where an accused is testifying to historical events, in this case, occurrences 30 years earlier, his evidence cannot be held to a level of perfection. This has been recognized in numerous cases.
[47] In Hilton, this Court held the trial judge’s focus on the inability of the appellant to remember irrelevant, collateral details to assess the appellant’s credibility was palpable error (para 45).
[50] Here, the appellant admitted he could not recall the exact year and type of residence where he had lived some 30 years earlier. This is different than a witness who maintains certainty regarding their memory which is later shown to be faulty. A sincere lack of recollection on peripheral matters cannot, on its own, be a basis for rejecting an accused’s evidence.
Conclusion
[53] The appeal is allowed and a new trial ordered.
R v RB-C, 2024 ONCA 930
[December 20, 2024] Charter s.11(b): Post Conviction Delay [Edwards R.S.J.]
AUTHOR’S NOTE: The Charter’s s.11(b) right to a trial within a reasonable time also applies to timely sentencing. Delays exceeding five months may warrant a reduced sentence as a remedy. However, collateral immigration consequences of sentencing are not considered exceptional circumstances. The court emphasized that a lawyer specializing in immigration law should provide a letter outlining the impact of the sentence for the judge’s consideration. Any delay in considering this information by the court does not count toward reducing the delay under s.11(b).
A. INTRODUCTION
[1] The appellant was convicted of sexual assault. He received a conditional sentence of two years less a day, followed by one year of probation.
[2]….The appellant also appeals his sentence, arguing that the trial judge erred in dismissing his postconviction application brought under s. 11(b) of the Canadian Charter of Rights and Freedoms.
[3]….However, I would allow the sentence appeal because the trial judge erred in dismissing the s. 11(b) Charter application. By way of remedy, I would reduce the length of the conditional sentence from 2 years less a day to 20 months.
C. SENTENCE APPEAL
(1) Introduction
[43] The sentence appeal focuses on the trial judge’s ruling dismissing the appellant’s post-conviction s. 11(b) Charter application.
[44] After the trial judge found the appellant guilty on October 7, 2021, she did not sentence the appellant until December 16, 2022, over 14 months later. At the time of sentencing, the appellant was in Canada on a temporary work permit.
[45] On October 20, 2022, the appellant brought an application under s. 11(b) of the Charter based on the post-conviction delay in imposing a sentence. On December 16, 2022, before delivering her reasons for sentence, the trial judge heard submissions on the s. 11(b) application. She dismissed the application with reasons to follow. In these reasons, released on March 9, 2023, the trial judge explained she had dismissed the application because she found that the delay was partly due to defence delay and partly due to exceptional circumstances arising from her own medical issues, from the complexity of the immigration issues on sentencing and from technical issues attributable to the COVID-19 pandemic. She concluded the total delay in sentencing amounted to 12 months, 13 days and that the net delay was of 304 days. Once the discrete exceptional circumstances were deducted, the resulting delay totalled 116 days, or just under 4 months.
[46] The appellant challenges the trial judge’s s. 11(b) ruling and argues that a proper analysis should lead to the conclusion that the delay in sentencing unreasonably exceeded the five-month post-conviction presumptive ceiling. On this basis, the appellant requests that this court substitute the conditional sentence imposed by the trial judge with a conditional discharge.
[47] I agree that the trial judge erred in her s. 11(b) analysis. Specifically, she erred in characterizing this as a complex case and in characterizing the delay due to technical difficulties as an exceptional circumstance attributable to the COVID19 pandemic….
[48] Before turning to the analysis, it is helpful to first review the general principles that apply to post-conviction delay, followed by a review of the facts in this case and the trial judge’s s. 11(b) ruling.
(2) General principles that apply to post-conviction delay
[49] In R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, this court held that the presumptive ceiling for trial delay set by the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 does not include consideration of the time between conviction and sentencing. However, the court held that there is a separate presumptive ceiling of five months between the date of conviction and the date of sentencing. The court emphasized that “five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b)” (emphasis added): at para. 87.
[50] The court further explained, at paras. 74 and 90-91, that, even in complex cases, the trial judge has a responsibility to raise the issue with counsel and set dates that take the presumptive ceiling into account.
[51] On a post-conviction s. 11(b) application, the court is to follow the same framework as established in Jordan, at para. 105, for calculating whether the delay was unreasonable. First, the court is to calculate the total time between the date of conviction and the date of sentencing. 2 Second, the court is to subtract delay solely attributable to the defence, which results in the net delay: Jordan, at paras. 60-61; Charley, at para. 89. A net delay that exceeds the five-month ceiling is presumptively unreasonable: Charley, at para. 87. The Crown can rebut this presumption by showing that the delay was due to exceptional circumstances, which can arise from discrete events or from the particular complexity of the proceeding, but not from chronic institutional delay: Jordan, at paras. 68-76; Charley, at paras. 98-104.
[52] There were 435 days between the date when the trial judge convicted the appellant and the date when she sentenced him. There were several court appearances during this time:
(4) Trial judge’s reasons for dismissing the s. 11(b) application
[53] The trial judge released her written reasons for dismissing the s. 11(b) application on March 9, 2023.
[55] The trial judge stated that the total delay in this case was 12 months and 13 days. She then applied the “Jordan framework” to the period of post-conviction delay in this case.
[56] The trial judge first characterized the period between December 13, 2021 and February 25, 2022 as defence delay, because of defence counsel’s delay in ordering the transcript of the reasons for decision. This was a period of 74 days, which brought the net delay down to 304 days.
[57] The trial judge next found that some periods of delay were due to exceptional circumstances attributable to discrete events or the complexity of the case:
April 5 to 19 and July 12 to September 16, 2022: this delay was due to the trial judge’s medical issue and was a discrete event.
May 24 to July 12 and September 16 to October 20, 2022: this delay was due to the need for additional submissions regarding the immigration consequences of the proposed sentences; this was required because of the complexity of the case.
February 25 to April 5, 2022: on February 25, the Crown was not able to complete submissions within the time allocated for the hearing. The trial judge stated that this was due to the court moving to fixed time hearings during the pandemic and some technical difficulties that delayed the hearing itself. The trial judge characterized this period of delay as “lack of court time” that was a “discrete event and a circumstance of the Covid-19 pandemic”.
[58] Based on this categorization of the periods of delay, the trial judge deducted 80 days due to “Judge’s unavailability”, 69 days due to “Questions from bench” and 39 days due to “Lack of Court time”, which brought the total delay below the 5-month presumptive ceiling.
(5) Analysis
(ii) Delay due to the complexity of the case
[64] The appellant submits that the trial judge erred in deducting a 69-day period due to the complexity of the case. I agree for two reasons.
[65] First, while collateral immigration consequences add some complexity to sentencing, this is not the type of “particular complexity” contemplated by Jordan that would justify delay beyond the presumptive ceiling. In Jordan, at para. 77, the Court explained the types of circumstances that could be viewed as “particularly complex”:
Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [Emphasis added.]
[66] While this passage describes the types of complexities that may reasonably delay a trial rather than sentencing, the examples the Court provided nevertheless emphasize that only in exceptional circumstances will delay be justified due to the complexity of the case; in other words, the case must be particularly complex.
[67] In this case, the collateral immigration consequences added some complexity to the sentencing exercise but did not add particular complexity. The law regarding the role of collateral immigration consequences is well settled; while a trial judge can consider the collateral immigration consequences of a sentence, the sentence must nevertheless be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-16; R. v. R.L.S., 2020 ONCA 338, at paras. 10-12. The evidence required to ascertain the immigration consequences in any given case should be fairly straightforward, namely, as in this case, an opinion letter from a lawyer specializing in immigration law. If the defence is delayed in obtaining such a letter, this may be categorized as defence delay, but that is not what happened here. Unless the immigration circumstances in a particular case are truly exceptional, collateral immigration consequences on their own should not be viewed as exceptional.
[68] Second, in Charley, as reviewed above, this court directed trial judges to properly manage complex issues that may arise on sentencing to avoid delay beyond the presumptive ceiling….
[69] This was not done here. The appellant raised the issue of collateral immigration consequences relatively early in the sentencing process and submitted an opinion letter in support of this position, which was available for the hearing on February 25, 2022. This letter evidently caused the trial judge some concern and, rather than delivering the sentence, she asked for further information and submissions on the immigration issues twice, namely on May 24 and September 16, 2022. At no time did the Crown or the trial judge raise concerns over the delay this was causing. At no time did the Crown or the trial judge express any concern over the delay this was causing. If the trial judge had questions about the immigration issue, she should have raised them at the earliest opportunity and set a schedule to try to get answers to her concerns within the presumptive ceiling. From my review of the record, she did not do so.
[70] The trial judge erred in categorizing the collateral immigration consequences as an exceptional circumstance and in failing to case manage the sentencing proceedings in a way that minimized the delay caused by this issue. As a result, I would not subtract this period of delay from the net delay.
(iii) Delay due to the COVID-19 pandemic
[71] The appellant argues that the trial judge erred in deducting 39 days of delay for lack of court time due to the COVID-19 pandemic. I agree.
[73] With all due respect to the trial judge, what occurred during submissions on February 25, 2022 cannot be described as an exceptional circumstance caused by the COVID-19 pandemic. It was not the pandemic that caused the delay, such as when courts shut down altogether in March 2020 and jury trials were not available until September 2021: see R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, leave to appeal refused, [2023] S.C.C.A. No. 477 (Flemmings), and [2023] S.C.C.A. No. 478 (Agpoon). There are many cases in which delay caused by the pandemic was justifiably an exceptional circumstance: see e.g., Donnelly, at paras. 23-27; R. v. Long, 2023 ONCA 679, 431 C.C.C. (3d) 288; and R. v. Coates,2023 ONCA 856, 169 O.R. (3d) 401, leave to appeal refused, [2024] S.C.C.A. No. 41. But not in this case.
[74] What occurred here were small delays on a hearing day due to technical challenges and other missteps. Following the trial judge’s reasoning, all delays caused by minor technical issues since the pandemic could be categorized as an exceptional circumstance. By February 2022, the courts had generally adapted to the pandemic by introducing options for virtual hearings. Technology is not perfect and participants’ use of technology is not perfect, but minor technical malfunctions and attendant delays are not what the Supreme Court meant by stating that delay caused by exceptional circumstances could justify an extension of time. On the contrary, this is precisely the type of institutional drift or delay that participants in the justice system should guard against: Jordan, at paras. 81, 112-17; see also R. v. Kirkopoulos, 2024 ONCA 596, at paras. 22, 45-53.
[75] Once it became evident that submissions could not be completed on February 25, 2022, the parties and the trial judge should have been alert to the impending five-month presumptive ceiling and strived to make a plan to ensure sentencing was completed within that time period. Unfortunately, no one raised this concern and no steps were taken to guard against the mounting postconviction delay.
(6) Revised calculation of delay
[77] Based on the analysis above, I would calculate the delay in this case as follows:
Total delay in sentencing (October 7, 2021 to October 20, 2022): 378 days
Defence delay due to transcripts (December 13, 2021 to February 25, 2022): 74 days
Net delay: 304 days
Exceptional circumstance due to trial judge’s unavailability (April 6 to 19, 2022, and July 12 to September 16, 2022): 79 days
Remaining delay: 225 days
[78] The remaining delay is over seven months, which is well over the five-month presumptive delay. The post-conviction delay in this case was therefore unreasonable.
(7) Appropriate remedy
[82] In this case, the remedy should also target the sentence. The offence of sexual assault is serious and the sentence should remain proportionate to the nature of the offence. While finding that there were several mitigating factors in this case, such as the appellant’s remorse and that this was his first offence, in her sentencing reasons, the trial judge nevertheless noted the seriousness of the offence and the devastating impact it has had on the complainant:
[83] In the circumstances, giving effect to the appellant’s request for a conditional discharge would not be appropriate. Instead, I view the delay in sentencing as an enhanced mitigating factor and would reduce the sentence from a conditional sentence of 2 years less a day to a conditional sentence of 20 months.
D. DISPOSITION
[85] I would dismiss the conviction appeal. I would grant leave to appeal the sentence and allow the sentence appeal. I would reduce the sentence from a 2 year less a day conditional sentence to a 20-month conditional sentence. All other terms of the sentence are to remain in place.
