WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.M., 2013 ONCA 333

DATE: 20130524

DOCKET: C56273

Laskin, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S. M.

Applicant/Appellant

Alan D. Gold, for the applicant/appellant

Randy Schwartz, for the respondent

Heard: May 3, 2013

On appeal from the decision of Justice Faye McWatt of the Superior Court of Justice, sitting as a summary conviction appeal court, on November 14, 2012, dismissing an appeal from the conviction entered on June 27, 2011, and allowing in part an appeal from the sentence imposed on February 15, 2012, by Justice Lucia Favret of the Ontario Court of Justice, sitting without a jury.

Epstein J.A.:

Introduction

[1] On September 2, 2009, a physical encounter took place between the applicant, who is a police officer, and the victim, a university student. Difficulties arose after the police stopped the victim while he was driving his car at a high rate of speed. The applicant was charged with assault and sexual assault, and after a judge-alone trial, the trial judge was persuaded that the applicant did assault the victim and that the assaultive behaviour included grabbing the victim’s genitals. The applicant was convicted on both charges.

[2] The trial commenced on January 17, 2011, and when argument concluded on March 7, 2011, the trial judge put the matter over to May 31, 2011, for the delivery of a verdict. Prior to May 31, however, the trial judge indicated that she had not yet completed her reasons, and she postponed the verdict to June 27. On that date, the trial judge delivered a guilty verdict with reasons to follow. The parties agreed upon the date of November 21, 2011, for sentencing.

[3] After various delays and postponements, the reasons were delivered at the November 21, 2011, court attendance. As a result of the delay in the reasons, the sentencing hearing was adjourned to February 2, 2012. In the interim, defence counsel (not Mr. Gold) brought an application for a stay under s. 11(b) of the Charter. The hearing of the application and the sentencing hearing both took place on February 2 and 7. On February 15, the trial judge dismissed the s. 11(b) application and sentenced the applicant to 30 days in jail.

[4] The applicant appealed his convictions and sentence to the summary conviction appeal court. The conviction appeal was dismissed. The sentence appeal was allowed in part and the sentence was varied by allowing the applicant to serve the 30 days intermittently.

[5] The application for leave to appeal is with respect to conviction and sentence. However, in oral argument, counsel for the applicant conceded that he could not raise an error of law with respect to sentence, and therefore effectively abandoned that ground of appeal. The remaining application with respect to the conviction appeal is narrowly cast: the applicant reinvigorates his argument under s. 11(b).

Analysis

[6] Appeals to this court in summary conviction proceedings are not as of right or unrestricted in the nature of grounds that may be advanced. Section 839(1) of the Criminal Code controls and requires that the ground of appeal must involve a question of law alone.

[7] Here, the proposed ground of appeal relates to the trial judge’s characterization of various periods of time relevant to the s. 11(b) claim, and therefore raises a question of law: see R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at para. 41; R. v. Schertzer, 2009 ONCA 742, 255 O.A.C. 45, at para. 71.

[8] Even where the proposed appeal raises a question of law, the decision to grant leave is discretionary. The discretion must be exercised in the interests of justice. Two factors dominate the proper exercise of that discretion. The first is the significance, beyond the specific case, of the proposed question of law to the administration of justice in the province. The second is the strength of the proposed appeal: see R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 30. Leave to appeal is granted sparingly: see R.R., at para. 37.

[9] The applicant’s arguments about the characterization of the delays he experienced in the completion of this matter 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 the criminal proceedings were concluded within a reasonable time are well-established: see R. v. Nguyen, 2013 ONCA 169, at paras. 47-52. Application of these principles 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. Fairly, the applicant does not press this factor.

[10] This takes me to the second factor established in R.R. Where the merits of the appeal appear very strong, leave to appeal may be granted despite the lack of any general significance, especially if the conviction at issue is serious and the applicant is facing a significant deprivation of his or her liberty.

[11] The applicant submits that the appeal judge erred by failing to engage in any meaningful analysis of the 2 years, 1 month and 28 days it took to conclude this matter. As a result, the appeal judge’s holding that the trial judge made no reviewable error must be scrutinized by this court. The applicant contends that the trial judge erred in failing to characterize certain periods as institutional delay – particularly the periods associated with the trial judge’s delay in providing reasons for conviction.

[12] The essence of the applicant’s argument is that, properly calculated, the total institutional delay is close to thirteen months as opposed to the ten months assessed by the trial judge.

[13] As a relatively minor part of his argument, the applicant challenges the trial judge’s characterization of some pre-trial delays, such as the time between setting the judicial pre-trial and the actual date of the judicial pre-trial, and part of the time it took for the trial to start.

[14] I see no reason to interfere with the appeal court’s conclusion that the trial judge made no error in her characterization of the pre-trial delays. The Crown and defence jointly requested an adjournment of the judicial pre-trial. As for trial preparation, the preparation time assigned by the trial judge was on the low end of the relevant range: see e.g. R. v. Schertzer, at para. 94; R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165, at paras. 32-33. I also observe that at no time did the defence indicate a preparedness to proceed earlier: see R. v. Schertzer, at para. 94; R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at paras. 25-35.

[15] This takes me to the applicant’s main argument – the delay in the delivery of the reasons and the consequences of that delay. Counsel for the applicant candidly admits that the delay directly attributable to the timing of the release of the reasons cannot be taken to have started until September. This is because had the reasons been given on June 27, 2011, taking into consideration the time required to arrange for the evidence needed for the sentencing hearing, September was the earliest the sentencing hearing could have taken place.

[16] It follows that the period to be considered with respect to the time lag in the delivery of the reasons is the eleven weeks between September and November 21, 2011. These eleven weeks, added to the ten months of institutional delay assessed by the trial judge, amounts to about 13 months of institutional delay.

[17] The applicant submits that delay of this length is on the cusp of unconstitutional delay according to R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The applicant further argues that this troubling amount of delay, together with two other factors, call for a stay. First, it must be borne in mind that the trial judge was the cause of the delay under scrutiny and therefore was required to assess the effects of her own conduct, and second, the delay caused actual prejudice to the applicant.

[18] For the following reasons, I disagree.

[19] In my view, none of the time between June 27 (the verdict) and November 21 (the reasons) should be characterized as institutional delay. I agree that the delay in the delivery of the reasons was indeed long. It must have seemed particularly so to those involved in the prosecution in the light of the fact that in that period of time the trial judge regularly promised to deliver the reasons and then later found herself unable to honour the promise.

[20] However, the real concern is not the delay itself but whether it affected the pace of the case. I do not see how the first half of the delay under consideration affected the prosecution’s trajectory. On June 27, when the verdict was rendered, the Crown and defence consented to the November 21 date for sentencing submissions. Significantly, the defence neither requested an earlier date nor indicated he would have been available before November 21. Moreover, the pre-sentence report and many of the letters the defence obtained to support his sentencing submissions were not available until the end of October or into November. I therefore conclude that the trial judge did not err in failing to attribute any of this time to institutional delay.

[21] This takes me to the period between November 21, 2011, and February 2, 2012. About two months of this period are not in dispute – it was necessary because of the trial judge’s failure to provide her reasons earlier. The trial judge recognized this and unequivocally took responsibility, characterizing 54 days as institutional delay.

[22] The parties take issue over 19 days attributed to the defence because of defence counsel’s unavailability between November 21, 2011, and February 2, 2011. I see no error in the trial judge’s refusal to attribute 19 days to institutional delay – the Crown was ready as early as November 30, so it is reasonable to attribute some of the delay to the defence. However, even if I were to cede to the applicant’s position, the total institutional delay would be approximately ten and a half months – in the circumstances of this case, hardly at the tipping-point of unconstitutional delay.

[23] As noted, the applicant submits that this court should take into consideration that the trial judge was assessing her own conduct. I do not see the relevance of this point. There are many occasions on which judges must assess their own conduct, such as the appropriateness of particular jury instructions and rulings on mistrial applications for reasonable apprehension of bias. In such circumstances, it is assumed that judges execute their functions in a judicious and impartial manner. I see no reason to conclude that the trial judge did otherwise in this case. The trial judge thoughtfully assessed her own conduct and attributed delay to her actions where appropriate.

[24] Turning to the applicant’s submission regarding prejudice, I note that the trial judge did find some evidence of actual prejudice. However, I see no reason to interfere with the trial judge’s findings, grounded in the evidence before her, that the applicant’s stress did not prevent him from working and did not cause him to be alienated. While the applicant was no doubt adversely affected by the delay in awaiting his sentence, on this record I see no difference between his stress and anxiety, and that of any other offender. There is nothing here that transforms what is otherwise a reasonable delay into a constitutional violation.

[25] In my view, therefore, the merits of this appeal are far from strong.

[26] In terms of the other relevant consideration under the second R.R. factor, I would add that while the convictions may attract additional consequences given the applicant’s status as a police officer, it cannot be said that as a result of these convictions he faces any significant deprivation of his liberty. He received a brief intermittent sentence, much of which has been served.

Conclusion

[27] I do not regard this as an appropriate case for granting the applicant leave to appeal and would therefore dismiss the application.

Released:

“MAY 24 2013” “Gloria Epstein J.A.”

“JL” “I agree John Laskin J.A.”

“I agree H.S. LaForme J.A.”