Court of Appeal for Ontario

Date: 2019-12-18 Docket: C66188 Judges: MacPherson, Sharpe and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Dale Lapps Appellant

Counsel

Dale Lapps, acting in person

Matthew Gourlay, appearing as duty counsel

Jessica Smith Joy, for the respondent

Hearing

Heard: December 11, 2019

On appeal from the conviction entered by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, on October 11, 2018, and from the sentence imposed on January 25, 2019, with reasons reported at 2019 ONSC 132.

Reasons for Decision

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

[2] The appellant was convicted of importing and possession for the purpose of trafficking cocaine, after his third trial on those charges.

[3] At his first trial, the appellant had introduced his trucking logs into evidence. At his second, his counsel had also introduced the trucking logs into evidence. Before the third trial, the Crown proposed an Agreed Statement of Facts with the intention that it be filed at trial. A provision of the proposed Agreed Statement of Facts was that the appellant's trucking logs would be admitted as evidence. Counsel for the appellant ultimately sent an email before trial agreeing that the trucking logs would be admitted as evidence as part of the Crown's case. Two weeks later appellant's counsel advised he wished to resile from the agreement about the trucking logs, and he brought an application to the trial judge for permission to do so. The trial judge held that permission was required and refused to give it. Appellant's counsel signed the Agreed Statement of Facts which contained the agreement about the trucking logs, and it was filed at trial under s. 655 of the Criminal Code, R.S.C. 1985, c. C-46.

[4] The appellant argues that the trial judge erred in treating the agreement made before trial about the admission of the trucking logs as being governed by s. 655 of the Code which, he submits, only applies to agreements or admissions made at trial, not before. We do not agree that that distinction is operative in the circumstances of this case.

[5] The agreement proposed by the Crown was one to be used at trial under s. 655. Once counsel agreed to it, the trial judge had a discretion to refuse permission to resile from an agreement that had been expressly made in anticipation of such use. She was entitled to reject the suggestion that the agreement had been made in haste, to take into account that there was no suggestion of a mistake or misunderstanding which led to the agreement, and to note that the appellant did not dispute that the logs were made by him and were accurate. We reject this ground of appeal.

[6] We also reject the argument that the trial judge erred in admitting the out-of-court statement of Mr. Jackson. In our view the trial judge correctly applied the principles in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865. She considered the substantive reliability of the statement in light of evidence which corroborated it, including police surveillance of which Mr. Jackson was unaware when he made the statement. We see no error in the trial judge's conclusion that it was unlikely that material aspects of the statement would change under cross-examination.

[7] Finally, we see no error in the trial judge's refusal to provide a "Bosley credit" in determining the sentence for the appellant (see R. v. Bosley (1992), 59 O.A.C. 161 (C.A.)). The trial judge found she could not rely on the appellant's affidavit supporting the credit because she did not find him a credible witness, and that he did not demonstrate prejudice arising from the delay in the matter reaching final conclusion, including because he had had the opportunity to work through a significant period of that delay.

[8] Accordingly, the appeal was dismissed.

"J.C. MacPherson J.A."

"Robert J. Sharpe J.A."

"B. Zarnett J.A."