Court File and Parties

CITATION: R. v. Ferguson, 2008 ONCA 764

DATE: 20081114

DOCKET: C44124

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and MacFarland JJ.A.

BETWEEN:

Her Majesty The Queen Respondent

and

George Lynden Ferguson Appellant

Counsel: H. Stone, for the appellant Craig Harper, for the respondent

Heard and released orally: October 28, 2008

On appeal from the decision of the summary conviction appeal court dated August 12, 2005 by Justice S. Bruce Durno of the Superior Court of Justice, dismissing the appeal from the conviction entered on March 2, 2004 by Justice Theo Wolder of the Ontario Court of Justice.

ENDORSEMENT

[1] This is an application for leave to appeal and if leave is granted on appeal from the decision of the Summary Conviction Appeal Court rendered in August of 2005. The Summary Conviction Appeal Court set aside a stay entered at trial on the basis of section 11(b) of the Charter and remitted the matter to the trial court for sentencing. We are told that the sentencing has taken place and that an appeal to the Summary Conviction Appeal Court on the merits of the conviction is outstanding.

[2] There are three issues upon which the applicant seeks leave to appeal. We would not grant leave to appeal on any of these issues.

Issue Number One

[3] The crown did not perfect its appeal in the Summary Conviction Appeal Court as required by the rules. This practice of course cannot be condoned. If any appellant should perfect in accordance with the rules, it is the crown. It was up to the Summary Conviction Appeal Court judge in the exercise of his discretion to decide whether the crown’s failure to comply with its obligation to perfect the appeal was sufficiently egregious to merit a dismissal of the appeal without addressing the merits. The Summary Conviction Appeal Court ordered that the appeal should proceed. He required the crown to produce additional material for the purposes of the appeal. This resulted in some delay.

[4] In our view the decision of the Summary Conviction Appeal Court judge is a discretionary decision relating to the conduct of the proceedings in his court. It is the kind of decision that must attract maximum deference. We see no reason for this court on an application for leave to appeal to second guess the exercise of that discretion.

Issue Number Two

[5] Counsel for the appellant argues that the Summary Conviction Appeal Court judge in effect raised a new ground of appeal after the appeal had been argued and while his decision was under reserve. In our view this mischaracterizes what the Summary Conviction Appeal Court judge did. He did not raise a new ground of appeal. The ground of appeal was whether the trial judge had properly addressed the various delays caused in this proceeding in assessing whether there was a breach of section 11(b) of the Charter. The Summary Conviction Appeal Court judge did focus on an issue, the effect of the various and sundry motions brought for disclosure and production by the appellant, that was not the focus of the crown’s submissions on the appeal. It was however clearly a part of the section 11(b) calculus. This would be known to anyone familiar with the history of these proceedings and the methodology involved in the analysis of a section 11(b) claim. The motion judge was entitled to consider the effect of the various motions brought during the trial process on the reasonableness of any delay. We also think he was entitled to request that counsel produce to him the relevant material that was before the trial judge. This material should have been produced by counsel without any delay.

[6] The real question is whether the procedure followed by the Summary Conviction Appeal Court judge caused any prejudice to the appellant in his response to the crown’s appeal. Counsel for the appellant has not satisfied us that the conduct of the Summary Conviction Appeal Court resulted in any prejudice to him. He was given a full opportunity to address the issues that concerned the Summary Conviction Appeal Court judge in the course of his consideration of the appeal and he declined to avail himself of that opportunity. We would not grant leave to appeal on this issue.

Issue Number Three

[7] Counsel for the appellant argued briefly that the Summary Conviction Appeal Court judge erred in his section 11(b) analysis. We see no merit to that argument. We are in substantial agreement with the analysis of the Summary Conviction Appeal Court judge.

[8] We would add that the analysis of section 11(b) cannot be exclusively a microanalysis of the various periods of time encompassed in the overall trial process. Judges considering section 11(b) claims must also look at the overall process. In this case based on the findings of the trial judge as confirmed by the Summary Conviction Appeal Court judge, it is abundantly clear that delay in the process was an integral part of the defence tactics throughout this case. The defence delaying tactics correctly informed the section 11(b) analysis of the Summary Conviction Appeal Court judge. We would not grant leave to appeal on this issue.

Conclusion

[9] Leave to appeal is refused.

“Doherty J.A.”

“K. Feldman J.A.”

“J. MacFarland J.A.”