Court of Appeal for Ontario

Date: 2017-03-27 Docket: C61353

Judges: Rouleau, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Scott Falkowski Appellant

Counsel

Scott Falkowski, acting in person

Christine Mainville and Dan Stein, appearing as duty counsel

David Friesen, for the respondent

Heard: March 6, 2017

On appeal from the conviction entered by Justice William B. Horkins of the Ontario Court of Justice on August 20, 2015 and from the sentence imposed on November 4, 2015.

Endorsement

[1] At the conclusion of the hearing, the court dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant appeals from his conviction for breaking and entering into a dwelling house pursuant to s. 348(1)(b) of the Criminal Code. He has abandoned his request for leave to appeal his six month sentence.

[3] A theft occurred in a condominium unit in the building in which the appellant worked as the concierge. The condominium owners were showing their unit to prospective purchasers and over $4,000 was stolen from the premises. Some of the cash that was stolen had come from a tin container belonging to one of the owners. The police lifted fingerprints from that container. If proven to belong to the appellant, the fingerprint evidence created compelling circumstantial evidence linking the appellant to the crime.

[4] At trial, Officer Linley was qualified as an expert in fingerprint analysis. In her opinion, the print on the tin matched the properly proven known print taken as part of the investigative process that belonged to the appellant. Before the trial judge, the appellant argued that the "known print" was not taken as part of the intake process but was instead taken from police archives.

[5] The trial judge was well aware of the confusion relating to the prints. In careful reasons, he explained the basis for the appellant's argument and why, based on the facts, he rejected it and instead accepted Officer Linley's evidence. Those findings were available to the trial judge on the record before him and we see no error. Moreover, the conviction was one that a properly instructed jury or judge acting judicially could reasonably have rendered.

[6] We also see no error in the dismissal of the appellant's s. 11(b) application. Under the framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the appellant argues that while the 16.5 month delay fell within the Jordan parameters, the delay was unreasonable.

[7] We disagree. Under the Jordan framework, where the delay falls below the presumptive ceiling of 18 months, the onus is on the defence to show the delay was unreasonable. The defence must show: (i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings (defence initiative); and (ii) that the case took markedly longer than it reasonably should have: Jordan, at para. 82 (reasonable time requirement). The latter derives from a variety of factors such as the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87. In transitional cases, the two aforementioned criteria are to be applied contextually, with consideration given to the parties' reliance on the previous state of the law: Jordan, at para. 99.

[8] The appellant has failed to meet the onus of establishing the second criterion and therefore has failed to show that the delay was unreasonable in the circumstances. Although the trial judge attributed two months of delay as resulting from delay in Crown disclosure, he also noted that this was not a "garden-variety uncomplicated criminal case". Furthermore, although the trial was not completed within the estimated trial time of two days, the trial judge found that no fault was to be attributed to anyone in this regard. The 16.5 month delay has not been shown to be unreasonable. As the Supreme Court noted in Jordan, stays beneath the presumptive ceiling are expected to be rare, and limited to clear cases: at para. 48.

[9] The appellant also takes issue with the trial judge's dismissal of the appellant's s. 7 Charter application. He argued that a breach arose due to the failure of the police to preserve evidence of the video recording from the condominium's front lobby closed circuit TV monitor. He argued that the video might have disclosed an unauthorized person taking a key to the owners' unit.

[10] The trial judge noted that the Crown's duty to disclose gives rise to a duty to preserve relevant evidence. However, he found that the evidence was somewhat speculative and not clearly relevant.

[11] The case pointed to the theft having been committed by an insider and the video would not show the hallways or the entrance to the owners' unit. Inquiries with respect to the video were made by the police. The trial judge concluded it was a reasonable investigative decision not to preserve the video. The trial judge could find no unacceptable negligence or bad faith. As such, there was no s. 7 breach.

[12] Moreover, the trial judge noted that although he was not granting a stay, when applying the reasonable doubt standard, he would consider the impact of the missing evidence on the reliability of the evidence as a whole.

[13] We agree with the trial judge's analysis and conclusion and would not give effect to this ground of appeal.

[14] Lastly, we see no merit in the submission that the trial judge's reasons suffered from any insufficiency. The trial judge explained why he was deciding as he did and, read as a whole and in the context of the evidence, his reasons allowed for effective appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-16.

[15] The appeal is dismissed.

"Paul Rouleau J.A."

"S.E. Pepall J.A."

"L.B. Roberts J.A."