Court File and Parties

CITATION: R. v. Chen, 2009 ONCA 773

DATE: 20091105

DOCKET: C50726

COURT OF APPEAL FOR ONTARIO

Doherty, Simmons and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ru Chen

Appellant

Counsel: Peter Lindsay, for the appellant Robin Flumerfelt, for the respondent

Heard and orally released: November 2, 2009

On appeal from the judgment of Justice C. Speyer of the Superior Court of Justice dated June 15, 2009.

ENDORSEMENT

[1] We agree with the disposition and analysis of Speyer J. in the Superior Court. Nothing in this record provides any basis for a legitimate reasonable apprehension of bias claim or a legitimate claim of procedural unfairness. The trial judge’s frustration with the seemingly endless course of what should have been a straightforward “summary” criminal proceeding, is entirely understandable and, in our view, must be a legitimate concern to anyone concerned about the proper administration of justice in this province.

[2] The trial judge’s frustration with the inability of counsel for the Crown and defence to co-operate so that court time would not be wasted by listening to a partially inaudible recording is again an entirely understandable sentiment. In our view, the trial judge’s admonition to both counsel could not possibly be viewed by any reasonable person as reflective of bias against the accused or any form of procedural unfairness.

[3] The trial judge’s comments about the progress of other impaired driving cases (not made in the course of these proceedings) were in large measure totally irrelevant and could not support the claims advanced in these proceedings. We would note, however, that her concern about the difficulties posed by trials that stretch over months and months was an entirely justified concern.

[4] We also do not accept counsel’s interpretation of the events following the request for an adjournment to explore the possibility of a guilty plea. The trial judge’s request for an explanation after the matter was not resolved by way of a plea as she had been told in all likelihood it would be, was not inappropriate. It is wrong to suggest that the trial judge was “disappointed” that the matter would not proceed by way of a guilty plea. She was concerned that counsel, who had already been granted two adjournments and unsuccessfully sought a third on various grounds, including the anticipated guilty plea, should give her some indication of what had happened after the request for the further adjournment was made. In fact, counsel did not even appear, but sent someone who was in no position to assist the trial judge but could only request a further adjournment.

[5] On our reading of the transcripts, the trial judge was concerned that the request for an adjournment to explore the possibility of a guilty plea had been yet a further attempt to delay these proceedings. In our view, it was in that light that she sought some explanation for what had happened. None was ever offered. The trial judge acknowledged she was not entitled to make inquiries that would intrude on the client/solicitor privilege. We do not think that the privilege would have been compromised by a properly framed explanation, if one existed.

[6] This matter is remitted to the Ontario Court for trial. The appellant’s meritless application for certiorari and prohibition and his equally meritless appeal from the order of Speyer J. have caused a further delay in these proceedings. This matter should proceed to completion as expeditiously as the court’s schedule can accommodate it.

[7] The appeal is dismissed.

“Doherty J.A.”

“Janet Simmons J.A.”

“S.E. Lang J.A.”