Canada's Court: Oral Arguments from the SCC

R.B.-C. was convicted of sexual assault. He is an Iranian citizen living in Canada on a post-graduation work permit. But his sentence was not imposed until more than 14 months after his conviction. When it finally was imposed, he received a conditional sentence of two years less a day, followed by probation.
Because of the delay in sentencing, R.B.-C. sought a stay of proceedings under section 11(b) of the Charter. The application judge relied on the leading Ontario case on post-verdict delay, R. v. Charley, which sets a presumptive ceiling of five months. The judge concluded that the net delay fell below that ceiling and dismissed the application.
The Court of Appeal disagreed. It held that the post-conviction delay exceeded the five-month ceiling. Rather than ordering a stay, though, it reduced the sentence to 20 months.
The Supreme Court of Canada granted the Crown leave to appeal. The Court will consider both the proper framework for post-verdict delay and the appropriate remedy where that delay is found to be unreasonable.

Mr. Cope plead guilty to the aggravated assault of his common law partner. He had a significant criminal record, and a significant history of mental illness. Both he and his partner are Indigenous. The sentencing judge sentenced him to 5 years in custody for the aggravated assault, and eight months of custody for breaching the release orders he was subject to at the time of the aggravated assault on his partner.
At issue on appeal was the length of the sentence. Mr. Cope appealed the length of his sentenceand the majority of The Nova Scotia Court of Appeal allowed the appeal, and varied the length of the sentence to three years of custody for the aggravated assault. The dissenting justice would have allowed the leave to appeal, but would have dismissed the appeal, reasoning that the sentence imposed by the sentencing judge was fit and appropriate.

The respondent was charged with multiple counts of sexual offences in relation to three separate complainants, and in addition was charged with one count of simple assault. At trial, he was found guilty of the assault, but acquitted of the sexual offences. The trial judge found there was reasonable doubt on whether the acts were for a sexual purpose, and whether there was an exploitative relationship between the parties. The Crown appealed two of the sexual offence counts, arguing that the trial judge erred in excluding images found on a USB of other women, who were mostly clothed or partially clothed, in relation to a sexual fantasy involving magic acts and sawing women in half. The Crown sought to introduce this evidence as a similar fact application per Handy, while the defence argued it was bad character evidence and would result in propensity reasoning. The respondent had asked the complainants if he could use his cardboard saw to pretend to cut them in half, or place it on their abdomen to take a photo.
The majority of the Nova Scotia Court of Appeal dismissed the appeal, and found that the Crown had not succeeded in its argument, and found no error with the trial judge’s decision to properly exclude the USB evidence. The dissenting justice disagreed and held that she would have allowed the appeal and would have ordered a new trial based on the errors made in the trial judge’s assessment of the probative value and prejudicial effect as it related to the USB evidence, and that the exploitative relationship between one of the complainants was not properly assessed. She reasoned that both errors would have also materially impacted the verdicts.

The two respondents, jointly tried for a number of drug trafficking and related charges, argued that the delay in their case was unreasonable. While both the Crown and Defence agreed at trial that the delay was over the 18-month presumptive Jordan ceiling, the Crown sought to justify the delay by arguing that the complexity of the case necessitated the delay. The trial judge disagreed and stayed the charges. The trial judge found that the delay in the case was not justified as exceptional because of any complexity.
A majority of The Ontario Court of Appeal agreed with the trial judge and found no errors in the trial judge’s reasoning, or decision to stay the charges. Justice Roberts, dissenting, would have allowed the Crown’s appeal as a result of the miscalculation of the total net delay, and as a result of misapplying the governing principles in relation to what constituted an exceptional circumstance.

Despite the fact that the trial judge found that the appellant sent sexually explicit material to a minor, the trial judge was left in doubt as to whether (a) the identity of the appellant was made out on the video as an element of the offence, and (b) the specific intent to commit one of the enumerated offences, reasoning that it could have been simply a case of “flirtation”. The appellant was acquitted at trial of transmitting sexually explicit material to a person under the age of 16 for the purpose of facilitating the commission of either a sexual assault or the indecent act of exposing his genital organs to a person under 16 years of age for a sexual purpose.

The Ontario Court of Appeal held that neither the identity of the accused in the video or the specific intent to commit an enumerated offence was an element of the offences required to be proven beyond a reasonable doubt to secure a conviction. The Court took specific issue with justifying inappropriate behaviour by adults as “flirtation” with a minor. The acquittal was set aside and convictions entered because the Court of Appeal held that but for those errors by the trial judge, the appellant would have been convicted at trial.