Court of Appeal for Ontario

Citation: R. v. Hengeveld, 2010 ONCA 60 Date: 2010-01-26 Docket: C50115

Before: Winkler C.J.O., Goudge and Watt JJ.A.

Between:

Her Majesty the Queen Respondent

and

Cornelius Hengeveld Appellant

Counsel: Nicola Enzo Faieta, for the appellant Robin Flumerfelt, for the respondent

Heard and endorsed orally: January 15, 2010

On appeal from the decision of Justice Susan Himel of the Superior Court of Justice, dated February 9, 2009, sitting as a Summary Conviction Appeal Court on appeal from a decision of Justice Lloyd Budzinski of the Ontario Court of Justice dated August 16, 2007.

ENDORSEMENT

[1] The applicant seeks leave to appeal under s. 839(1)(a) of the Criminal Code from an order of a judge of the Superior Court of Justice sitting as a summary conviction appeal court dismissing the applicant’s appeal from two convictions of assault.

[2] The sole ground of appeal advanced before the summary conviction appeal court was that a judge of the summary conviction court, who was not the trial judge, had erred in failing to order that the proceedings against the applicant be stayed for unreasonable delay.

[3] Appeals to this court from decisions of judges of the Superior Court of Justice sitting as a summary conviction appeal court are limited to grounds of appeal that involve questions of law alone and require leave to appeal.

[4] In R. v. R.(R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463, this court held that leave to appeal should be granted sparingly. Two factors are of abiding importance to the determination of whether leave to appeal should be granted not a question of law alone: the significance of the legal issues raised to the general administration of criminal justice and the merits of the proposed grounds of appeal: R (R.), at para. 37.

[5] The proposed grounds of appeal, if questions of law alone, rather than questions of mixed fact and law, about which I express no opinion, do not have significance to the administration of justice beyond the circumstances of this case. The principles to be applied in a determination of whether an accused has been tried within a reasonable time are well-established. The soil has been well-tilled. Their application to the factual matrix of any case is of significance to the individual person or persons charged, but not to the administration of criminal justice as a whole. No new principle is advanced here, rather, only the application of well-established principles to the singular circumstances of this case.

[6] Leave to appeal may also be granted, even if the issues raised are not of general importance to the administration of justice, provided the merits of the appeal appear very strong. It is especially so if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty: R.(R.) at para. 37.

[7] Even if we were to cede to the applicant for these purposes that there appears to be an error in the summary conviction appeal court judge’s tally and/or characterization of a 35-day time period, in the final analysis, this is not a close case under s. 11(b). This is not a case at the tipping-point of unconstitutional delay. The merits of this appeal are not strong. The applicant does not face any significant deprivation of his liberty.

[8] Leave to appeal is refused.

“Winkler C.J.O.”

“S. T. Goudge J.A.”

“David Watt J.A.”