CITATION: R. v. Fenlong, 2010 ONCA 252

DATE: 20100407

DOCKET: C49613

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Epstein JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

George Fenlong

Appellant

Joseph Wilkinson, for the appellant

David Finley, for the respondent

Heard and released orally: March 29, 2010

On appeal from conviction and sentence entered by Justice Kenneth Pedlar of the Superior Court of Justice dated September 9, 2008.

ENDORSEMENT

[1] The appellant was convicted of discharging a firearm with intent to wound and various gun related offences. He received a global sentence of 7 years, less 55 months for time spent in pre-trial custody. He appeals from both conviction and sentence.

[2] With respect to conviction, the appellant raises two grounds of appeal.

[3] First, the appellant submits that the trial judge erred in denying his application to stay the proceedings under s. 11(b) of the Charter. We would not give effect to this ground.

[4] The appellant was charged on May 21, 2006 and his trial in the Superior Court commenced on September 2, 2008. As the record indicates, over the course of this 27-month period, the Crown did not cause any delay. Indeed, the Crown did what it could at every step along the way to move the process along. As part of this, early dates were offered to the appellant at both the preliminary hearing stage in the Ontario Court of Justice and at the trial stage in the Superior Court. For example, in the Ontario Court of Justice, dates for the preliminary hearing (which was projected to last 3 days) were offered as early as August 2006, within a few months of the charges. The appellant was unable to proceed that quickly and 3 days in December 2006 were set aside. Those dates had to be scrapped when the appellant changed counsel. Ultimately, the preliminary hearing was conducted over a 3-day period in October 2007.

[5] Efforts were also made in the Superior Court to accommodate the appellant. The appellant appeared in the Superior Court on November 5, 2007. His counsel was not available for trial until after February 25, 2008. It was estimated that the trial would last at least two weeks and the court could not accommodate everyone’s schedules until mid-September 2008. Given that the appellant was in custody, the matter was adjourned until January 7, 2008, with a view to narrowing the issues and seeing if an earlier date could be found. On January 7, a two-week block of time in April 2008 was offered to the appellant. Unfortunately, that did not accord with his counsel’s schedule. In the end, the matter was adjourned to the first week of September 2008 for trial.

[6] As the record shows, the system was prepared to accommodate the appellant throughout and had he availed himself of the various opportunities, or even some of them, his trial would have occurred much earlier. That did not occur because initially the appellant had difficulties retaining counsel of choice and latterly, because his counsel of choice could not take up the April dates offered in the Superior Court.

[7] No one is faulting the appellant for his choices. But this is not a case where the system or the Crown failed him. While it is true that the appellant was in custody throughout, and while we do not minimize the prejudice associated with his loss of liberty, it cannot be ignored that during the entire process, the appellant chose not to have a bail hearing. Whatever reasons he may have had for this, surely that is not something for which the Crown should be held responsible.

[8] In the end, balancing the prejudice to the appellant against the serious nature of the charges and society’s interest in having a trial on the merits, we are not persuaded that the trial judge erred. Indeed, we are satisfied that he came to the correct decision. Accordingly, this ground fails.

[9] The appellant’s second ground of appeal against conviction is that the trial judge misapprehended key portions of the evidence and reversed the onus of proof. We disagree.

[10] The trial judge engaged in permissible deductive reasoning in rejecting the appellant’s version of events. In doing so, he did not misapprehend the appellant’s evidence as to the circumstances under which he claims the gun was fired. On the contrary, he considered the appellant’s evidence and concluded that it was fanciful to infer that the victim either shot himself or was shot by a second assailant who was holding the victim in a bear hug at the time. The trial judge also gave cogent reasons for accepting the evidence of the victim and the second assailant, both of whom testified that the appellant was the shooter. Accordingly, we would not give effect to this ground of appeal.

[11] The appeal from conviction is therefore dismissed.

[12] As for sentence, we are not persuaded that the trial judge erred in the application of the Kienapple principle. Regardless, the sentence was fit and not one which we would disturb in any event. The appeal from sentence is likewise dismissed.

"Doherty J.A."

"M.J. Moldaver J.A."

"Epstein J.A."