COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Hay, 2016 ONCA 435
DATE: 20160602
DOCKET: C59005
MacFarland, van Rensburg and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Timothy Hay
Appellant
Counsel:
Frank Miller, for the appellant
Andrew Cappell, for the respondent
Heard and released orally: May 30, 2016
On appeal from the decision of the Summary Convictions Appeal Court dated May 21, 2014 by Justice Thomas J. Carey of the Superior Court of Justice, dismissing the appeal from the conviction entered on January 31, 2011 by Justice G. Mark Hornblower of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant was convicted of impaired driving and sentenced to a one-year driving prohibition and a $1,200 fine. He seeks leave to appeal the dismissal of his summary conviction appeal, where the only issue was whether the trial judge erred in dismissing his s. 11(b) application.
[2] Before this court, the appellant focused his argument on two issues. He contends that the summary conviction appeal court judge erred:
in substituting his own characterization of a seven month period (from July 15, 2010 to February 17, 2011) for that of the trial judge, absent a palpable and overriding error; and
in failing to attribute one-half of the period between the finding of guilt and the completion of the s. 11(b) motion to institutional delay,
with the overall result that there would be 15 months of unacceptable delay, and the court should infer prejudice to the appellant.
[3] In essence, the appellant challenges the allocation by the summary conviction appeal judge and the trial judge of the periods of delay in this case under the Morin analysis.
[4] The trial judge found one month of institutional delay and seven months attributable to the Crown, with the balance either inherent delay or delay attributable to the defense. The summary conviction appeal court characterized certain periods differently, concluding that approximately 3.5 months should be attributed to Crown delay, 4.5 months to defense delay and 25 months to neutral or inherent delay.
[5] The appeal judge was entitled to review the various periods alleged to have constituted delay and to arrive at his own characterization of the reasons for delay: R. v. Cranston, 2008 ONCA 751. In this case, the summary conviction appeal judge was doing precisely this. We do not accept the submission that the appellate judge was making factual findings different from those made by the trial judge.
[6] The appellant does not meet the test for leave to appeal to this court. There is no clear error of law or question of law raised by this appeal that would have general significance to the administration of justice. Leave to appeal is therefore denied.
“J. MacFarland J.A.”
“K. van Rensburg J.A.”
“Grant Huscroft J.A.”