Court of Appeal for Ontario

CITATION: R. v. Feeney, 2014 ONCA 270

DATE: 20140404

DOCKET: C53298

BEFORE: Sharpe, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jonathan Feeney

Appellant

COUNSEL:

Brenda A. Lawson, for the appellant

G. Choi, for the respondent

Heard & released orally: April 1, 2014

On appeal from the judgment of Lois B. Roberts of the Superior Court of Justice dated January 20, 2011 allowing an appeal from a stay granted by Justice Sheila Ray of the Ontario Court of Justice, dated January18, 2010.

ENDORSEMENT

[1] The trial judge granted a stay of charges of impaired driving and driving “over 80” pursuant to s. 11(b) of the Charter. The summary conviction appeal judge allowed an appeal, set aside the stay and ordered that the matter proceed to trial.

[2] Leave to appeal is sought on the second ground in R. v. R.R. (2008), 2008 ONCA 497, 90 OR (3d) 641; 234 CCC (3d) 463 (C.A.), namely, that the merits are strong and that leave should be granted because of the serious consequences for the appellant.

[3] In our view, the merits of this appeal are not strong and leave to appeal should be refused. We reach that conclusion for the following reasons.

[4] The appellant raises two points. The first is that both the trial judge and the summary conviction appeal judge erred in attributing four months from the first trial date, which was adjourned because of illness of a police officer, to the second trial date of November 9, 2010 as neutral because the case was not reached on November 9 and the trial was adjourned for a further two months. We disagree.

[5] The case was not reached on November 9 because the court was overbooked. The additional delay period caused as a result of this second adjournment, namely, two months until the date the case was reached, was attributed by both the trial judge and the summary conviction judge to institutional delay. That attribution dealt with the delay caused by overbooking and there was no reason to allocate any of the period before the November 9 trial date as institutional delay. The concurrent findings of both the trial judge and the summary conviction appeal judge on this point were reasonable and do not give rise to an arguable ground of appeal.

[6] The appellant also argues that the summary conviction appeal judge erred with respect to the prejudice he claims he suffered because of having to incur additional legal fees due to the adjournments of his trial. Again we disagree. The summary conviction appeal judge accepted the trial judge’s finding that there was some prejudice to the appellant, but she concluded that, as a matter law, a balancing of interests was required. As this was at best a borderline case of delay under s. 11(b) of the Charter, the prejudice involved as a result of additional legal costs was not sufficient to override the public’s interest in having a trial on the merits in this matter.

[7] Accordingly, for these reasons, leave to appeal the summary conviction appeal judge’s order is dismissed.

“Robert J. Sharpe J.A.”

“S.E. Pepall J.A.”

“M.H. Tulloch J.A.”