COURT OF APPEAL FOR ONTARIO

DATE: 20210715 DOCKET: M52394 (C69275)

Brown J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Responding Party (Respondent)

and

James Jahkyn Grant Applicant (Appellant)

Counsel: George Singh, for the applicant James Clark, for the responding party

Heard: June 17, 2021 by video conference

ENDORSEMENT

I. Overview

[1] The applicant, James Jahkyn Grant, applies for his release pending his appeal from his conviction by a jury of importing into Canada a controlled substance, namely 2.5 kilograms of cocaine. The cocaine was found hidden in a piece of the applicant’s luggage when he attempted to clear customs at Pearson International Airport upon his return from Aruba.

[2] The applicant was convicted by a jury on August 13, 2019. Sentence was passed on June 17, 2021. The sentencing judge imposed a custodial sentence of 4.5 years. After deducting approximately one year for pre-trial custody, the resulting sentence to be served is 3.5 years.

[3] The main grounds of appeal asserted by the applicant on his appeal are:

(i) The trial judge inadequately charged the jury on the requisite knowledge to establish the offence;

(ii) The trial judge failed to properly answer a question asked by the jury during their deliberations that sought to clarify some evidence and failed to permit the defence to properly address the evidence;

(iii) On a pre-trial application that sought to stay the charge by reason of the violation of the applicant’s rights under s. 11(b) of the Canadian Charter of Rights and Freedoms, Justice Harris erred in calculating the total amount of defence delay; and

(iv) On a subsequent pre-trial Charter application, Justice André failed to address various factual inconsistencies in the evidence, resulting in his erroneous dismissal of the application.

[4] The Crown opposes the application for three reasons: (i) the proposed grounds of appeal are devoid of merit; (ii) the applicant is unlikely to surrender into custody; and (iii) the public interest favours his detention as the reviewability interest in his appeal is weak while the enforceability interest points strongly in favour of his ongoing detention.

[5] Since only a few transcripts of the pre-trial proceeding were filed on this application, the applicant relies primarily upon the written reasons of the application judges, the charge to the jury, and the reasons for sentence. The applicant’s counsel, Mr. George Singh, has filed an affidavit opining on the merits of the appeal. [1] Mr. Singh also appeared as lead counsel on this application. Consequently, I am obliged to treat his affidavit as a form of argument, not opinion evidence.

[6] The applicant proposes release with bail of $10,000, without deposit, with two sureties, his wife and sister. Both acted as his sureties while on pre-sentence interim release.

II. Not Frivolous: Criminal Code s. 679(3)(a)

[7] The bar for establishing that an appeal is not frivolous is “very low”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. As described by Watt J.A. in R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: “An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.” The purpose of the “not frivolous” threshold is to require the applicant to “demonstrate that the appeal has some merit. If this were not so, the appellate process could be abused by those intent on forestalling the execution of a custodial sentence”: R. v. T.S.D., 2020 ONCA 773, at para. 24.

[8] I shall assess each of the applicant’s grounds of appeal against this standard.

A. Charge to the jury

[9] As his first ground of appeal, the applicant submits the trial judge inadequately charged the jury on the requisite knowledge required to establish the offence. According to a written copy of part of the charge, when instructing the jury on the elements of the offence the trial judge stated:

The Crown is required to prove that [the applicant] actually knew or was aware that the substance was a controlled substance, in this case cocaine. [The applicant] does not have to know the technical term for the substance but must know that it is a controlled substance.

[10] As I understand the applicant’s submission, he does not take issue with that part of the charge. Instead, he submits that when the trial judge summarized the Crown’s position for the jury he referred several times to what the applicant “must have known”. The applicant submits that without a correcting or clarifying instruction, those references would have misled the jury about the applicable legal requirements for knowledge.

[11] The written copy of the charge included in the record does not contain the judge’s summary of the Crown’s position. Nor does the record contain the transcript of the charge, pre-charge conference or any post-charge objections. [2] Consequently, the applicant has failed to file the evidentiary record necessary to assess whether this ground of appeal is not frivolous.

B. Trial judge’s response to a question from the jury

[12] At trial, the applicant testified that he had stayed at a particular resort for his entire stay in Aruba. During their deliberations, the jury asked a question about a document that showed the applicant stayed at the resort for a shorter period of time.

[13] The applicant submits the trial judge did not permit any opportunity to clarify the answer he provided to the jury “nor the ability for defence nor the crown to solicit a proper answer to the question.”

[14] The record does not contain the transcript of this portion of the trial. Instead, it contains what appears to be the reporter’s partial annotation of the audio recording. [3] The document contains less than 20 lines of annotation for a discussion between the trial judge and counsel that lasts about 19 minutes. Since it does not provide the entirety of the discussion, I cannot assess the legal adequacy of the trial judge’s approach and, therefore, cannot assess whether this ground of appeal is not frivolous.

C. The s. 11(b) ruling

[15] Justice Harris heard the s. 11(b) application on November 26, 2018. At that point of time, the total delay from the date the applicant was charged, January 25, 2015, to the prospective trial date, January 14, 2019, was just short of four years, exceeding the presumptive ceiling of 30 months established by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In the result, the application judge attributed 22 months of the delay to defence conduct or waiver, leaving a net delay of about 26 months, which fell under Jordan’s presumptive ceiling: 2018 ONSC 7260.

[16] The applicant’s notice of appeal states that Justice Harris “erred in calculating the total amount of delay for the purposes of 11(b) application based on a misinterpretation of the facts presented in support of the delay in the matter being heard within a reasonable time as permitted by law.” Counsel did not elaborate on this ground of appeal in his affidavit of merits.

[17] In oral submissions counsel submitted that the particulars of this ground of appeal are: (i) there was an element of bias on the part of the application judge as he described several instances of conduct by the applicant as “the particular brand of juridical nihilism espoused by the applicant”; (ii) the trial judge considered some affidavit evidence filed by the Crown without affording the defence an opportunity to cross-examine on it; and (iii) the trial judge incorrectly calculated delay attributable to defence conduct or waiver. Counsel submitted that a fair analysis of the events would conclude that the applicant was not responsible for any of the delay.

Allegation of bias

[18] As described by Justice Harris, at many steps along the way the applicant challenged the authority of the court, as well as that of police officers who attempted to fingerprint him. The application judge commented: “In his many appearances, the applicant often referred to himself as an indefinable spirit created by flesh and blood and as an aboriginal sovereign on his land.” The application judge’s reasons reproduce portions of the transcripts of some of the proceedings in which such conduct occurred. The applicant’s conduct, as disclosed in those transcripts, led the application judge to state, at paras. 20 and 21:

With respect to a number of the incidents, the applicant and his counsel blame others. I am very skeptical. On the contrary, from the many conflicts which have occurred with the full gamut of personnel in the administration of justice, including judges, court officers, police officers, and lawyers, a portrait of the applicant emerges. The applicant is not merely egocentric. He does not see himself so much as the centre of the universe as a separate and complete universe on to himself. He refuses to acknowledge the authority of the state over him. The applicant is a judicial nihilist. This is a particularly convenient stance for a man charged with a serious criminal offence.

For the purpose of clarity, although it should be unnecessary to say, there was not a scintilla of sense let alone legal merit to any of the applicant’s positions with respect to the authority of judicial officers over him. The applicant is subject to the same authority and jurisdiction of the court as any other accused person. To take one of the more egregious examples, failing to appear because he feels hard done by in the system cannot be tolerated.

[19] The applicant contends that the application judge’s use of the term “judicial nihilist” displays bias against him. I am not persuaded that this ground of appeal surpasses the “not frivolous” standard. Other courts have employed strong language to describe the conduct of those who act in court in ways similar to those employed by the applicant: R. v. Cassista, 2013 ONCJ 305; R. v. Duncan (2012), 2013 ONCJ 160; and Meads v. Meads, 2012 ABQB 571, 74 Alta. L.R. (5th) 1. In any event, a reading of the application judge’s reasons discloses that he took an evidence-based approach to the arguments advanced by the applicant on his s. 11(b) motion.

The treatment of affidavits filed by the Crown just prior to the s. 11(b) hearing

[20] The transcript of the 11(b) hearing reveals that the application previously had been adjourned, following which the applicant filed supplementary materials. Just before the November 26, 2018 hearing date, the Crown filed some responding materials. The application judge acceded to defence counsel’s request for a few hours to review the Crown’s materials.

[21] Upon resuming, the application judge proposed that the hearing proceed, with the issue of cross-examination on the Crown’s supplemental affidavits left to another day:

THE COURT: Why can’t we proceed here today and leave the affidavit issue for another day? We can argue everything today as is and then we come to cross examine on the affidavits at some other date.

MR. SINGH: I’m prepared to do that Your Honour. Just a moment, let me just confer with my client. Yes Your Honour, the preference is to be able to complete today. However, if that’s the only way this matter will proceed we do want to start today. We don’t want to delay any further.

[22] The parties then proceeded to make their submissions on the 11(b) application. At the conclusion of the submissions, defence counsel again raised the issue of the Crown’s supplemental affidavits. Defence counsel requested that the court not consider certain affidavits unless cross-examination was permitted, to which the application judge responded:

THE COURT: Okay, I’ll consider that long with everything else. And I’ll reserve then and if I need you to come back I’ll let you know.…

[23] The court then permitted the applicant to file several videos of his interaction with court security and institution officers that had not previously been filed as part of his application materials.

[24] The reasons of the application judge disclose that he did not find it necessary to consider the affidavits and determine what in fact had taken place on certain occasions. He wrote, at para. 19:

I have been asked to determine what actually occurred during some of the incidents during the movement of this case through the system such as in the flagpole incident for example. In cases in which the conduct in question is not captured on the record, a motions judge is in no position to hold mini-trials to resolve factual disputes concerning the applicant’s many conflicts with those in the administration of criminal justice. Furthermore, such an approach would be contrary to the letter and spirit of Jordan. The Supreme Court has concluded that the hearing of 11(b) motions should be streamlined just as the substantive criteria have been from the previous Askov/Morin structure.

[25] Instead, the application judge examined five periods of delay that the Crown contended were either defence delay or waiver. It is apparent from the reasons that the application judge did not rely on the contested affidavits to determine which periods of delay were attributable to defence conduct or waiver. This ground of appeal therefore does not exceed the “not frivolous” threshold.

Errors in attributing delay to the defence

[26] The next aspect of this ground of appeal alleges that the application judge wrongly attributed time to defence delay.

[27] The longest such period of time ran from April 15, 2016 until January 31, 2017. The application judge described the events at para. 26:

After leaving the court twice in the midst of the March 23, 2016 appearance before Justice Durno and being warned that an arrest warrant would be issued, the applicant was required to reattend on April 15, 2016. On April 1, 2016 he was served with a pre-trial conference form but was reluctant to accept service. He failed to attend on April 15, 2016 and a bench warrant was issued for his arrest. He was not arrested until the New Year and appeared before the court January 31, 2017.

[28] The applicant’s position was that the delay from April 15 until November 16, 2016 should be the shared responsibility of the Crown and defence, with the remainder treated as institutional delay because the applicant was in custody on another matter on November 16, 2016. According to the applicant, the primary fault lay with the authorities for not executing the arrest warrant more quickly.

[29] The application judge rejected that submission writing, at para. 28:

These arguments are totally devoid of merit and I dismiss them out of hand. It was the applicant’s obligation to attend court and, having missed it, it was his obligation to bring his failure to appear to the attention of the authorities. There is not one iota of evidence that the police were negligent. The burden falling on the applicant, this argument fails. This time period is the responsibility of the defence: Jordan at para. 63.

[30] The second significant period of time, which the application judge also characterized as delay attributable to the defence, was a period of almost five months: February 2, 2017 – April 25, 2017; and May 25, 2017 – July 28, 2017. During the first period, the applicant was attempting to retain a lawyer; during the second, the Crown and court were prepared to set a trial date but counsel for the applicant was not.

[31] On appeal, the applicant will argue that the application judge erred in attributing those periods of time to defence delay instead of inherent delay. I recognize that the characterization of periods of delay, and the ultimate decision concerning the reasonableness of a period of delay, is reviewable on a standard of correctness; the underlying findings of fact are reviewable on a standard of palpable and overriding error: R. v. Konstantakos, 2014 ONCA 21, 315 O.A.C. 123, at para. 5; R. v. Williamson, 2014 ONCA 598, 324 O.A.C. 231, at para. 29, aff’d 2016 SCC 28, [2016] 1 S.C.R. 741; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d 2021 SCC 2, 453 D.L.R. (4th) 189.

[32] Nevertheless, as to the April 15, 2016 to January 31, 2017 period of time, one condition of the applicant’s interim release was that he would “attend[] thereafter as required by the court in order to be dealt with according to law.” It appears uncontested that the applicant did not do so. The case law recognizes that the allocation of responsibility for delay resulting from an accused’s failure to appear in accordance with terms of release involves, in part, a consideration of the knowledge of the Crown about the accused’s whereabouts and whether the accused’s inability to appear was due to reasons beyond his control: R. v. J.K., 2021 ONCA 256, 155 O.R. (3d) 427, at paras. 38-45. Here, however, the applicant has not provided any evidence on those matters that would enable me to assess the strength of the application judge’s conclusion that the applicant’s “arguments are totally devoid of merit.”

[33] As to the other periods of time, Jordan includes within delay attributable to the defence delay caused solely by the conduct of the defence and delay caused when the court and Crown are ready to proceed but the defence is not.

[34] In those circumstances, on the evidentiary record before me I conclude that this ground of appeal does not surpass the “not frivolous” threshold.

D. Errors in dismissing the 2019 pre-trial stay application

[35] A few months prior to trial, the applicant sought a stay of the charge on the basis that on numerous occasions state agents violated his ss. 2, 7, 8, 9, 10, 12, and 15 Charter rights. The application took 11 days to argue. Justice André dismissed the application: 2019 ONSC 3616.

[36] In his notice of appeal the applicant states that Justice André erred in dismissing the application “by not addressing the various factual inconsistencies of the evidence put forth in the Crown’s case.” Applicant’s counsel did not elaborate on this ground in his affidavit of merits. In oral submissions, counsel stated that the particulars of this ground of appeal were: (i) a reasonable apprehension of bias on the part of Justice André; (ii) some officers admitted to lying but the application judge made no comment; and (iii) witness dishonesty.

[37] Justice André’s reasons run some 30 pages. He examined in detail each of the eight incidents in which the applicant alleged that his Charter rights had been violated by a judge, police officer or court security officer. The allegations against the judges also included allegations of reasonable apprehension of bias. Justice André gave extensive reasons why he did not find a Charter violation in any of the incidents. The applicant’s grounds of appeal submitted before me lack sufficient particularity to enable an evidence-based assessment of their merits: Oland, at para. 45. Since the applicant bears the burden of establishing that his appeal is not frivolous, I am not satisfied that he has met that burden for this ground of appeal.

E. Conclusion

[38] For the reasons set out above, based on the record filed on this application I am not satisfied that the applicant has established that his appeal is not frivolous.

[39] Although that is sufficient to determine this application given the conjunctive nature of the Criminal Code s. 679(3) criteria, I will consider the other two criteria.

III. Surrender into Custody: Criminal Code s. 679(3)(b)

[40] The second criterion the applicant must establish is that he will surrender himself into custody in accordance with the terms of the release order. I am not satisfied that the applicant has satisfied this criterion for the following reasons.

[41] First, as mentioned above, the applicant failed to attend court on April 15, 2016, contrary to the terms of his interim release dated January 30, 2015. A bench warrant was issued. He was arrested early the following year and appeared before the court on January 31, 2017. The applicant does not address this issue in his supporting affidavit. Although his proposed sureties depose that they had no issues with ensuring the applicant complied with his conditions of interim release, they were acting as sureties during the time the applicant failed to appear in 2016 and 2017. I therefore give little weight to their present assurances.

[42] Second, the applicant provided no information in his supporting affidavit about any employment or source of income for the period prior to the hearing of his appeal. In his reasons, the sentencing judge wrote that the applicant reported that he was a principal and administrator of Rouge Ontario Cathedral Kynship but did not provide any proof of income. Simply put, the applicant has not provided the court with evidence of a concrete release plan.

[43] Third, I am concerned about the applicant’s history of aggressively challenging the authority of the court in the criminal proceeding against him. While the applicant did not repeat his failure to attend court following his arrest in January 2017, my concern about his failure to comply with a term of his interim release is compounded by the observation made by MacPherson J.A. in R. v. Patterson (2000), 135 O.A.C. 324 (C.A.), at para. 11, that flight before trial and flight after conviction and the imposition of a serious custodial sentence are very different scenarios: “When optimism and hope recede, thoughts of flight might well advance.” I appreciate that the applicant has deposed that he has five children whom he supports and is active in their daily lives. However, his affidavit lacks concrete details about his release plans.

[44] Taken together, these factors lead me to conclude that a real risk exists that the applicant would not surrender himself into custody in accordance with the terms of a release order.

IV. Public Interest: Criminal Code s. 679(3)(c)

[45] The public interest criterion consists of two components: public safety and public confidence in the administration of justice: Oland, at para. 23.

[46] There is no suggestion in the present case that the applicant’s release would jeopardize public safety.

[47] The public confidence criterion requires balancing several factors: the seriousness of the offence; the strength of the grounds of appeal; public safety; and flight risks: Oland, at para. 47.

[48] Given my conclusion above on the first criterion, the applicant’s grounds of appeal do not clearly surpass the “not frivolous” criterion: Oland, at para. 44. By contrast, the enforceability interest in the present case is strong: the applicant has been convicted of a very serious criminal offence and there is a risk that he would not surrender into custody. In my view, the enforceability interest far outweighs the reviewability interest: Oland, at para. 50.

[49] I conclude that the applicant has not established that his detention is not necessary in the public interest.

DISPOSITION

[50] For these reasons, I dismiss the application.

[51] However, given the applicant’s family situation, I am prepared to give directions pursuant to Criminal Code s. 679(10) to expedite the hearing of this appeal. If the applicant perfects his appeal by August 31, 2021, I direct that the hearing of his appeal take place no later than December 17, 2021, with 2.5 hours of oral argument allocated for the appeal.

“David Brown J.A.”

[1] Although the copy of the affidavit included in the application record contains the entirety of counsel’s treatment of the grounds of appeal, it is missing a few introductory pages. Two efforts by the court’s Executive Legal Officer to obtain from applicant’s counsel copies of the missing pages proved unsuccessful.

[2] The applicant filed summary annotations of some portions of the trial leading up to the charge. This document did not contain any active links to an audio recording. In any event, it was the obligation of the applicant to file a proper transcription of the relevant portions of the trial on this application.

[3] Again, this document did not contain any active links to an audio recording.