COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lo, 2014 ONCA 23

DATE: 20140110

DOCKET: C56114

Doherty, Strathy and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vinh Quang Lo

Applicant (Appellant)

Leo Adler and Karen Symes, for the applicant (appellant)

Nick Devlin and Andrew Nisker, for the respondent

Heard and released orally: January 7, 2014

On appeal from the conviction entered on September 20, 2012 and the sentence imposed on October 18, 2012 by Justice Michael Code of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Despite counsel’s able argument, we cannot agree that the trial judge erred in holding that the appellant’s s. 11(b) rights were not violated. We agree with the trial judge’s analysis of the various time periods. While we may have allotted slightly more time to systemic delay than did the trial judge, we cannot justify intervention on that basis.

[2] We also agree with counsel for the appellant’s submission that the trial judge’s reasons are open to the interpretation that when considering inferred prejudice, a trial judge should not have regard to neutral time periods. If that was what the trial judge intended to say, he was, with respect, in error: see R. v. Ralph, 2014 ONCA 3. The entire period of the delay, that is the time period from the charge to the completion of the trial, is properly considered in assessing inferred prejudice.

[3] We are satisfied that there was some inferred prejudice as a result of the delay in this case. However, even taking that inferred prejudice into account along with the actual prejudice identified by the trial judge, we agree with the trial judge’s ultimate conclusion that there was no s. 11(b) violation.

[4] The appeal is dismissed.

[5] The appellant was sentenced to an intermittent sentence and he has been on bail since the trial. He is directed to commence the service of that intermittent sentence in accordance with the terms imposed by the trial judge.

“Doherty J.A.”

“G.R. Strathy J.A.”

“G. Pardu J.A.”