Criminal Law - Defence - Charter of Rights, Section 11(b)
The accused applied for an order to stay the proceedings against him because of unreasonable delay pursuant to s. 11(b) of the Charter. He was charged with one count of possession of child pornography contrary to s. 163.1(2) on September 5, 2017. After police seized and searched his computers, he was charged on April 6, 2018 with making child pornography contrary to s. 163.1(4) of the Code. He argued that the presumptive ceiling in R v Jordan was exceeded when delay was calculated from the swearing of the first information, and that the same ruling should apply to the second information because all counts arose out of the same proceeding. The parties filed an agreed statement of facts as an exhibit that set out the facts and the court endorsements. The total delay from the swearing of the first information to the anticipated conclusion of trial on January 29, 2021 was 1,242 days, exceeding the 913 day-ceiling established in Jordan. The defence had requested adjournments that totaled 294 days, reducing the delay to 948 days. As the net delay was presumptively unreasonable, the Crown argued that it could rebut the presumption because of the COVID-19 pandemic. It asserted that the length of time between the first two scheduled trial dates was a result of COVID-19 and that the delay that occurred as a result of setting the third trial date, 138 days, should be subtracted from the net delay.
HELD: The application for a stay on the first information was dismissed and as a consequence, no stay was granted regarding the second information. The court reviewed the exceptional circumstances relied upon by the Crown. It found that the pandemic was responsible for some of the 138-day delay. However, it determined that only 71 of the 138 days should be deducted for that reason due to a mistake by the Crown. The total delay was then 877 days, below the Jordan ceiling. The defence had not established that the remaining delay was unreasonable.