Court of Appeal for Ontario

CITATION: R. v. McColm, 2008 ONCA 873

DATE: 20081222

DOCKET: C46917

Doherty, Rosenberg and Cronk JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Terrance Benjamin McColm

Appellant

David Butt, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: December 11, 2008

On appeal from conviction entered by Justice David Salmers of the Superior Court of Justice, sitting with a jury, dated December 20, 2006 and sentence dated March 30, 2007.

ENDORSEMENT

[1] The appellant limited his appeal from conviction to the issue whether the trial judge erred in dismissing his application for a stay of proceedings on the basis of a violation of the appellant’s right to trial within a reasonable time. We have not been persuaded that the trial judge erred in dismissing the application and we essentially agree with his reasons. We address only some of the points raised by counsel in argument.

[2] The appellant submits that in August 2005 when the preliminary inquiry judge became ill the Crown should have immediately applied to have the judge removed in accordance with R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45. Where, as here, the judge is expected to return to his duties, the Crown must apply to remove the judge where the apprehension of a s. 11(b) violation outweighs the general rule that the judge should remain seized with the case. In this case, while substantial time had already elapsed, it could not be said that in August 2005 the apprehension of a s. 11(b) violation outweighed the general rule. In fact, we note that but for the failure of the interpreter to attend at the November date, the preliminary inquiry would have been completed at that time or shortly thereafter.

[3] The appellant submits that in considering the public interest in a trial, the trial judge erred in taking into account that the accused was a police officer. We disagree. That the appellant was a police officer and caused other officers to launch a false investigation was a relevant consideration.

[4] The appellant also submits that while the trial judge found significant prejudice to the appellant by reason of the delay, he did not place sufficient weight on the fact that the prejudice was exacerbated by the fact that the appellant was a police officer. In our view, the trial judge appropriately dealt with the issue of prejudice. We do not accept the premise that in this case, because the appellant was a police officer, somehow he was obliged to live without the presumption of innocence.

[5] The appellant submits that the trial judge erred in finding that the case was of more than average complexity. In our view, the trial judge’s assessment was entirely reasonable. The case took almost five days for the preliminary inquiry, and involved a co-accused and substantial disclosure. The trial judge did not overemphasize the complexity of the case in his assessment.

[6] Accordingly, the appeal from conviction is dismissed.

[7] As to sentence, in our view the sentence should be varied having regard to the fresh evidence concerning the appellant’s present circumstances. We would reduce the length of the conditional sentence to 15 months and vary the discretionary terms of the sentence as follows:

(1) Condition 2 is deleted.

(2) Condition 6(a) is varied as follows:

(a) You may leave the residence between the hours of 8:00 a.m. and 6:00 p.m. for the purpose of employment or at other times as may be approved in advance by your supervisor.

(3) Conditions 16 to 20, 22 and Appendix “A” requiring electronic monitoring are deleted.

(4) Condition 24 is deleted.

[8] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted, the appeal is allowed and the sentence is varied in accordance with these reasons.

Signed: “Doherty J.A.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”