Court of Appeal for Ontario

Citation: R. v. Vitanza, 2007 ONCA 753

Date: 2007-11-06

Docket: C44025

Between:

Her Majesty the Queen Respondent

And

Mickael Vitanza Applicant/Appellant

Before: Simmons and MacFarland JJ.A. and Watt J. (Ad Hoc)

Counsel: Vanessa V. Christie for the applicant/appellant Daniel Guttman for the respondent

Heard and endorsed orally: October 30, 2007

On appeal from the Summary Conviction Appeal decision by Justice David L. McWilliam of the Summary Conviction Appeal Court of the Superior Court of Justice dated December 13, 2004.

Appeal Book Endorsement

[1] The appellant was convicted of assault causing bodily harm. His appeal to the summary conviction appeal court was dismissed. The appellant raises two issues on his appeal to this court.

[2] First, the appellant claims that the summary conviction appeal court judge erred in concluding that the trial judge properly dismissed his s. 11(b) Charter motion brought at the time the trial resumed.

[3] We reject this submission. Even assuming that the trial judge erred by failing to properly assess the significance of the actual prejudice she had found when balancing the relevant factors, in our view, the s. 11(b) Charter motion was properly dismissed.

[4] In this court, both the appellant and the Crown agree that properly characterized the institutional/Crown delay in this matter is about 11 to 12 months. Taking account of the nature of the actual prejudice found by the trial judge--anxiety and stress in relation to which he sought assistance from a psychologist--in our view, the appellant failed to demonstrate a s.11(b) Charter breach. As this court has noted many times, the Morin guideline is simply that, a guideline, it is not a statute of limitations. The prejudice caused by anxiety and stress relates in part to the fact of the charges as well as to the factor of delay. Taking all of the relevant factors into account, we are simply not persuaded that the appellant demonstrated that the delay in this matter was unreasonable.

[5] Second the appellant claims that both the summary conviction appeal court judge and the trial judge erred in deciding that because the appellant was well known to the eyewitnesses the identification evidence was extremely strong. The appellant says that because of this error the trial judge ignored other evidence that detracted from their identification and that her finding of guilt was unreasonable.

[6] We reject this submission. The trial judge referred explicitly to the fact that, at trial, one of the eyewitnesses acknowledged that he had been in error when he told police the appellant's brother was also involved in the assault. In our view, it was unnecessary that the trial judge refer to the other evidence the appellant complains about in order to sustain her finding. In our opinion, the trial judge's finding was not unreasonable and the summary conviction appeal court judge made no error in failing to find it to be so.

[7] Leave to appeal is granted but the appeal is dismissed.