Stay for delay in the context of Child Pornography

R. v. Sherbanowski, 2011 ONSC 7061 (CanLII) is a fact driven Superior Court case where charges relating to the possession, and making available, of child pornography were stayed after a delay of 57 1/2 months. The Court hold:

A. The Framework for the Analysis

[2]               Speaking for a majority of the Supreme Court of Canada in R. v. Morin 1992 CanLII 89 (S.C.C.), (1992), 71 C.C.C. (3d) 1, Justice Sopinka held that while society itself has an interest in s. 11(b), the primary purpose of the provision is the protection of the right of the accused to security of the person, liberty and a fair trial. With respect to the societal interest in s. 11(b), Justice Sopinka stated, at page 13, "[as] the seriousness of the offence increases so does the societal demand that the accused be brought to trial." The seriousness of the offence is not a separate factor to be considered in and of itself, however, but rather is a circumstance that "must inform both the court's consideration of each [of the relevant] factor[s] and the balancing exercise": R. v. Kporwodu and Veno 2005 CanLII 11389 (ON C.A.), (2005), 195 C.C.C. (3d) 501 (Ont. C.A), at paragraph 192.

[3]               Justice Sopinka made it clear that the decision as to whether s. 11(b) has been infringed is not to be made "by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay". He noted that "it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" That question, he concluded, is to be answered after considering all of the relevant circumstances, including the length of the delay, whether there has been a waiver of any of the delay, the reasons for the delay, and whether the accused has suffered prejudice by reason of the delay.

[4]               In this case, 57½ months passed between the commencement of the proceedings and the beginning of the trial. That delay is sufficiently lengthy to justify an inquiry into the reasons for it. There has been no suggestion of waiver. The question of whether an infringement of s. 11(b) of the Charter has been established, therefore, turns largely on an examination of the reasons for the delay and an assessment of whether the applicant has been prejudiced by it.