Court of Appeal for Ontario

Date: 2017-09-12 Docket: C63544

Panel: MacPherson, Rouleau and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Elvin Kemp Appellant

Counsel

Elvin Kemp, in person Amy Ohler, duty counsel Peter M. Campbell, for the respondent

Heard: September 6, 2017

On appeal from the conviction entered on June 15, 2016 by Justice Terrence L.J. Patterson of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted under s. 5(2) of the Controlled Drugs and Substances Act of possession of crack cocaine and marijuana for the purpose of trafficking. Prior to trial, he brought an application for a stay of proceedings for infringement of his right to a timely trial under s. 11(b) of the Charter of Rights and Freedoms. That application was heard on April 25, 2015 and dismissed on September 25, 2015. The matter proceeded to trial on June 15, 2016. Prior to sentencing, however, the appellant brought a second s. 11(b) application, following release of the Supreme Court's judgment in R. v. Jordan. The second application was also unsuccessful, and the appellant was subsequently sentenced.

[2] The appellant appeals against conviction on the basis of errors in both s. 11(b) applications.

[3] Despite the able submissions of duty counsel, Ms. Ohler, we are unable to conclude that the application judge made a reviewable error in dismissing either application.

[4] In the first application, the application judge was to apply the law as developed following Morin. Although the application judge erred by terminating the calculation of delay as of the date the trial began, rather than the date it ended, it is not an error that affects the result. While the delay was at the high end of the range set out in Morin, the application judge went on to consider all of the other relevant factors including prejudice to the accused, and we see no basis to interfere with his weighing of these factors. Although, as noted by duty counsel, the application judge did not specifically refer to inferred prejudice to the accused resulting from the delay, we are satisfied, reading the reasons as a whole, that he took this into account in reaching his conclusion.

[5] The second application was brought immediately following the release of Jordan, at a point when this matter was very nearly concluded: the appellant had been convicted but not yet sentenced. Assuming that the net delay exceeded the presumptive ceiling of 30 months and that this delay could not be justified by exceptional circumstances, the outcome of the application turned on the transitional exceptional circumstances provision of Jordan. In transitional cases such as the present case, the parties are presumed to have relied on the law that applied prior to Jordan. That means that if the delay as assessed in accordance with the Morin regime was reasonable, it will generally be found to comply with Jordan. Only rarely will a transitional case that complied with Morin nevertheless be found unreasonable under Jordan.

[6] Given our conclusion on the first application that the application judge correctly found the delay to be reasonable under Morin, we agree with the application judge's dismissal of the second application.

[7] The appeal is dismissed.

"J.C. MacPherson J.A."

"Paul Rouleau J.A."

"B.W. Miller J.A."