- DATE: 20021011 DOCKET: C34511
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) - and - TETTEH KOFI HADJOR (Appellant)
BEFORE: FINLAYSON, MOLDAVER and FELDMAN JJ.A.
COUNSEL: Mr. Tetteh Hadjor In person
Chris Webb For the respondent
HEARD: October 7, 2002
RELEASED ORALLY October 7, 2002
On appeal from conviction by Justice David McCombs and a jury on March 14, 2000, and from sentence imposed on May 26, 2000.
E N D O R S E M E N T
[1] The appellant confined his argument on appeal to alleged breaches of his s. 7 Charter right to disclosure. In particular, he submitted that the trial judge erred in failing to stay the proceedings against him on the basis that the initial disclosure statements prepared by the complainants were not available, and that the police file was only disclosed to him after he had been found guilty by the jury. The trial judge carefully considered both of these arguments.
[2] In respect of the missing disclosure statements, he held that to the extent that any material was destroyed, “it was of marginal relevance when viewed in the light of the abundance of other material which had been disclosed.” The trial judge further found that any material that was no longer in existence “was not destroyed as a result of any efforts to subvert the course of justice or any other malicious purpose.” In the end, it was his considered opinion that “the unavailability of the missing material would not impact upon Mr. Hadjor’s right to a fair trial.”
[3] With respect to the police file, the trial judge assessed the information contained in it and concluded that “the vast majority of the material is identical to that which had already been provided to the defence prior to trial.” Accordingly, it was his view that the undisclosed material was “of marginal relevance” and that “it would have made no real difference to Mr. Hadjor’s defence had the material been disclosed when it should have been.”
[4] In our view, the findings made by the trial judge are supported by the evidence and we see no basis for interfering with his conclusion that this was not one of the clearest cases in which the drastic remedy of a stay was warranted. Indeed, when the police file is considered, the information contained in it is more harmful than helpful to the appellant and it supports the trial judge’s conclusion, on the first issue, that the missing statements from the complainants were of marginal relevance and that their absence did not deprive the appellant of his right to make full answer and defence.
[5] The only other issue raised by the appellant in oral argument relates to a delay in having his appeal heard. In particular, he submits that he has suffered serious prejudice because of the failure of the Crown, in accordance with our inmate appeal procedures, to order in a timely fashion the transcripts needed for the appeal. The appellant submits that the delay has occasioned serious personal prejudice to him, that it amounts to a breach of his s. 7 Charter rights, and that we should remedy the situation by allowing the appeal and quashing the convictions.
[6] We would not give effect to this argument. The delay, though unfortunate, did not prejudice the appellant in the argument of his appeal before us. In view of our conclusion that the appeal is without merit, to succeed, the appellant must satisfy us that the conduct of the Crown and/or the conduct of others for whom the Crown is responsible, was so oppressive and vexatious, or such an affront to fair play and decency, that it amounts to an abuse of process.
[7] The record before us does not meet either of those tests. While there may have been some slippage on the Crown’s part in requesting and obtaining the requisite transcripts, we are of the view that the Crown acted in good faith throughout and that at least a portion of the delay was attributable to the fact that the responsible court reporter was on maternity leave.
[8] Accordingly the motion and the appeal against conviction are dismissed.
[9] Although the appellant raised the issue of sentence in his notice of appeal, he did not address it in argument.
[10] In our view, the sentence imposed at trial was entirely fit and we see no reason for interfering with it. Accordingly, the sentence appeal is dismissed.
Signed: “G.D. Finlayson J.A.”
“ M. J. Moldaver J.A.”
“K. Feldman J.A.”