Court of Appeal for Ontario

Date: 2006-06-05 Docket: C43046

Re: Her Majesty the Queen (Respondent) v. Junior Christopher Brown (Applicant/Appellant)

Before: Doherty, Borins and Juriansz JJ.A.

Counsel: Christopher Hicks, for the appellant Gillian Roberts, for the respondent

Heard: May 17, 2006 Released Orally: May 17, 2006

On appeal from the conviction entered by Justice Marchand of the Superior Court of Justice dated October 20, 2004 and the sentence imposed on November 19, 2004.

Endorsement

The Conviction Appeal

[1] There are two grounds of appeal. The first relates to an application under s. 11(b) of the Charter to stay the proceedings based on unreasonable delay. It took 16 ½ months to bring this somewhat complicated case involving multiple accused and charges to trial before a jury. We agree with the trial judge that in the circumstances 16 ½ months was not “exceptional” and that no further s. 11(b) inquiry was required. It follows from that conclusion that if a full s. 11(b) inquiry were conducted, the result would have been to dismiss the application to stay the proceedings.

[2] The second ground of appeal alleges a misapprehension of evidence arising out of the cross-examination of the Crown DNA expert. We find no misapprehension of the evidence by the trial judge concerning the April 9 robberies and the evidence that the appellant’s DNA was found on a bandana connected to those robberies. In our view, the trial judge’s reasons reveal that he did not draw an inference which may or may not have been available based on the cross-examination of the Crown witness concerning the number of saliva stains that existed on that bandana. This ground of appeal cannot succeed.

The Sentence Appeal

[3] The total sentence imposed, including pre-trial custody, was 11 years (9 years plus 2 years credit for one year pre-trial). While this sentence is clearly long, especially in the light of the appellant’s age of 19 when the offences occurred, we are satisfied that it was an appropriate and fit sentence.

[4] The appellant was part of a group of young men who committed a series of robberies which must have terrified the victims. These were all vicious robberies on particularly vulnerable small store owners late in the evening. All three of the robberies, but especially the first, involved gratuitous and appalling violence against the victims. The appellant has a lengthy young offender record, including a prior conviction for robbery, and he was on probation when he committed these robberies. We are satisfied that the trial judge did not err in principle and that the sentence imposed on the appellant was within the range of fit sentences.

[5] The appeals are dismissed.

“Doherty J.A.”

“S. Borins J.A.”

“R.G. Juriansz J.A.”