COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gordon, 2012 ONCA 533

DATE: 20120808

DOCKET: C53406

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Michael Gordon

Appellant

David Kolinsky, for the appellant

Xenia Proestos, for the respondent

Heard and released orally: August 1, 2012

On appeal from the conviction entered on June 25, 2010 and the sentence imposed on September 24, 2010 by Justice J.R. Henderson of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

the conviction appeal

Section 11(b) of the Charter

[1] The trial judge made one error that potentially impacted negatively on the appellant’s s. 11(b) claim. The trial judge stopped the constitutional clock at the time of the motion. In fact, as conceded by the Crown, the clock ran until the completion of the trial, some three months later.

[2] Of the three months, one month, at most, could be viewed as institutional delay, although given the genuine public interest in the joint trial of co-accused, we doubt that even that one month could be viewed as institutional delay. The one-month delay was arguably caused by the unavailability of counsel for the co-accused. Adding one month of institutional delay does not affect the s. 11(b) arithmetic to the extent that we would be prepared to interfere with the trial judge’s determination that, in all of the circumstances, there was no violation of s. 11(b).

[3] We see no merit to the arguments with respect to prejudice. The trial judge did recognize the inferred prejudice from the delay. He also addressed the actual prejudice and, while he found some, he was not prepared to find the degree of prejudice that the appellant claimed he had suffered. It was for the trial judge to make that determination.

[4] In rejecting this ground of appeal, we should not be taken as adopting the trial judge’s analysis of the various time periods involved in the s. 11(b) analysis. In many respects, the trial judge proceeded on the concessions of counsel. Neither the trial judge nor counsel had the benefit of the recent jurisprudence from this court, especially R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83.

the crown’s cross-examination

[5] Parts of Crown counsel’s cross-examination can be characterized as tedious. Other parts were irrelevant and still others were improper. We are not satisfied, however, that Crown counsel’s cross-examination could, in any way, have compromised the appearance of trial fairness. We come to that conclusion not only because of the nature of the cross-examination itself, but also because the trial judge addressed, in a timely and emphatic way, the various transgressions during the cross-examination of the appellant. The trial judge’s interventions cured any potential problem.

the crown’s improper reference to disclosure in his closing address

[6] Crown counsel at trial (who was not counsel on appeal) seemed to invite the jury at one point in his closing to draw an inference against the appellant’s credibility because the appellant had the benefit of full disclosure and hearing the Crown’s case before testifying. At the outset of his charge to the jury, the trial judge emphatically advised the jury that no such inference could be drawn. The trial judge made it crystal clear to the jury that they should disregard that submission and that the appellant, like all accused, was constitutionally entitled to disclosure and to know the case for the Crown before testifying. Once again, the trial judge’s intervention avoided any potential prejudice to the accused.

inappropriate cross-examination ABOUT fabrication of the appellant’s story

[7] We see no merit to this submission. Crown counsel was entitled to put it to the accused that he had fabricated his evidence so that it would fit with the information contained in his Visa statement. We think this theory was clearly put to the accused and the accused had a full opportunity to respond to it. Indeed, in many ways, he effectively responded to the Crown’s questioning.

the discharge of a juror

[8] In the course of deliberations, the trial judge elected to discharge one of the jurors on the basis that she had indicated that she would have difficulty deciding the case without allowing her empathy for the appellant’s situation to play a role in that decision. The trial judge had a discretion to determine how to deal with the problem and, in our view, his decision to discharge the juror cannot be characterized as unreasonable. We would not interfere.

the sentence appeal

[9] The appellant received a sentence of eight years. Given the amount of cocaine involved in the importation and the previous jurisprudence from this court, we cannot say that that sentence was out of the appropriate range. Indeed, counsel for the appellant at trial acknowledged that eight years was within the appropriate range.

[10] Nor do we see any error in principle. The trial judge referred to the appellant’s criminal record, but also acknowledged that it was dated and did not involve similar offences. He did not, in our view, give the criminal record undue weight. Nor did the trial judge err in characterizing the appellant, albeit a courier, as a courier who operated at a more sophisticated level than many of the couriers who typically find themselves before the court. We think this was a fair assessment of the appellant’s role.

[11] In the result, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”