Court of Appeal for Ontario

Date: 2019-03-01 Docket: C65094

Judges: Pardu, Nordheimer and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Nickola Antic Appellant

Counsel

Paul Calarco, for the appellant

Megan Petrie, for the respondent

Heard

February 26, 2019

On Appeal

On appeal from the conviction entered on November 23, 2017 by Justice Pamela Borghesan of the Ontario Court of Justice and the sentence imposed on January 22, 2018.

Reasons for Decision

[1] Mr. Antic appeals his convictions, after a judge alone trial, on charges of robbery and breach of probation. He also appeals the sentence imposed of 20 months.

[2] Only one issue is raised on the conviction appeal and that is whether the prosecution ought to have been stayed for unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. The trial judge concluded that, after appropriate deductions from the total delay, the resulting delay did not exceed the presumptive ceiling of 18 months and thus did not warrant a stay being granted based on the principles set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. For the following reasons, we agree with the decision of the trial judge.

[3] It was admitted that the total delay in this case, before proper deductions, was 39 months and that that delay was presumptively unreasonable under s. 11(b) principles. However, the appellant takes issue with three periods of delay that the trial judge deducted from the total delay in deciding whether the presumptive ceiling had been exceeded such that a breach of s. 11(b) had occurred.

First Issue: Preliminary Inquiry Delay

[4] The first issue involves the time needed to set a date for a preliminary inquiry that ultimately never occurred. This resulted from the fact that the accused changed counsel on the day that the preliminary inquiry was to commence. The appellant, with his new counsel, eventually waived the preliminary inquiry in favour of proceeding with a trial in the Ontario Court of Justice.

[5] The appellant accepts that the delay from the scheduled start of the preliminary inquiry to the time when the trial date was set is defence delay. However, the trial judge also attributed the time, from when the preliminary inquiry date was set to the planned commencement of the preliminary inquiry, to the defence. The trial judge reasoned that, while the time to set the preliminary inquiry date would normally be considered institutional delay, in this case since the preliminary inquiry was eventually waived, it was not properly considered institutional delay. In other words, had the appellant decided on a trial in the Ontario Court of Justice at the outset, there would have been institutional delay arising from setting the trial date, which there was in this case in any event, but there would not also have been the institutional delay from setting a preliminary inquiry date.

[6] We do not see any error in the trial judge's analysis on this point. There wound up being two institutional delays arising from the setting of dates – one was the preliminary inquiry date and the other was the trial date. Had the appellant waived the right to a preliminary inquiry at the outset, the institutional delay in setting a date for the preliminary inquiry would have been avoided. At the very least, had the appellant decided to waive the preliminary hearing well in advance of its scheduled commencement, the time could have been used for other matters. The Crown had subpoenaed witnesses and was prepared to conduct the preliminary inquiry on the scheduled date. The appellant appeared on that date and without warning to any of the other participants indicated that he wanted an adjournment to retain new counsel. Jordan indicates at para. 138 that defence counsel are expected to use court time efficiently. The fact that that delay was not avoided lies at the feet of the appellant. The trial judge was correct to deduct that period of time as defence delay.

Second Issue: Trial Continuation Delays

[7] The second issue is with respect to the delays that occurred when the trial was not completed in the time frame originally contemplated. Dates for the continuation of the trial had to be found. One set of dates was made available in July and a further set of dates was made available in December. While the court was available on certain earlier dates, either Crown counsel or defence counsel was not. The trial judge began by considering the delay in getting to the continuation of the trial as having to be attributed between the Crown and the defence and attributed one and one-half months to the defence.

[8] However, later in her analysis, the trial judge deducted the entire five month period between July and December as an exceptional circumstance. She concluded that the additional time needed to complete the case was unpredicted by both counsel. It was the result of unforeseeable or unavoidable developments and thus constituted an exceptional circumstance: Jordan at para. 73. As noted in R. v. Jurkus, 2018 ONCA 489 at para. 55, "where a trial goes longer than 'reasonably expected', even where the parties have in good faith attempted to establish realistic timelines" it is "likely that the delay was unavoidable." In our view, the trial judge correctly treated this period of delay as an exceptional circumstance given her findings as to how it arose. We note, in passing, that this case does not engage the type of individual analysis arising from the unavailability of defence counsel when there are joint accused, that this court had to consider in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171. The appellant's reliance on that case is misplaced.

[9] Nevertheless, and as the respondent acknowledges, in the course of the trial judge moving from her initial analysis to the final analysis on this issue the trial judge unfortunately double-counted the one and a half months that trial judge had originally attributed to the defence because of the unavailability of defence counsel.

[10] However, correcting for this double-counting does not alter the end result. The trial judge found the total period of delay, after making the deductions that she did, to be 13 ½ months. Adding back to the delay analysis, the double-counting of the one and one-half months, leaves the total delay at 15 months. That delay is still below the presumptive ceiling of 18 months from Jordan. On that point, it is not necessary to deal with the respondent's argument that we should revisit other periods of time that the respondent submits the trial judge also should have deducted from the total delay.

Third Issue: Trial Judge Suspension

[11] The third and final issue involves a further period of delay that resulted from the fact that the original trial judge, Zabel J., was suspended from presiding over any matters as a result of a complaint to the Ontario Judicial Council completely unrelated to this case. Consequently, the trial could not continue in December as planned. The trial judge treated the delay that resulted from that event also as an exceptional circumstance. We agree with her treatment of that issue. While the appellant contends that he should not be tarred with the delay that resulted from that unusual event, the flip side is that neither should the Crown. That is the whole point behind treating the time as an exceptional circumstance. As Jordan pointed out, there are some events that no one can anticipate and those events should simply be removed from the delay analysis. The issue arising from the conduct of the original trial judge falls squarely within that category. That conduct was in no way connected to this trial. The Crown took prompt proactive measures to deal with the delay caused by this event. Once it became clear that the trial judge could not continue with the trial, new dates were obtained only two months away.

Conclusion on Conviction Appeal

[12] In the end result, the total delay that had to be considered, even after adjusting for the one instance of double-counting, is below the presumptive ceiling. The trial judge was correct in not granting a stay. We would note that the trial judge also considered this case under the transitional category and found no reason to reach a different conclusion under that analysis. We agree with her conclusion in that respect as well.

Sentence Appeal

[13] Lastly, the appellant seeks leave to appeal his sentence of 20 months. The appellant committed two separate violent robberies where pepper spray was directed at the faces of employees in small commercial establishments who were working alone, at night. The robberies were planned. The appellant took the first victim's cellphone from her and ripped out the landline from the wall. The appellant had a record, and was on probation at the time of the offences.

[14] The appellant has not shown any error of law or error in principle in the sentencing judge's decision: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. She considered the rehabilitative prospects for the appellant but she also considered that actual harm had been inflicted on the store clerks involved, and the fact that the appellant had a criminal record. She arrived at a sentence that trial counsel had acknowledged was within the range. In short, and contrary to the appellant's submissions, the trial judge did consider the appellant and his circumstances, and not solely the offences. There is no basis for this court to interfere with the sentence that she imposed.

Final Disposition

[15] In the end result, the appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed. In light of the Supreme Court of Canada's decision in R. v. Boudreault, 2018 SCC 58, the victim surcharge is set aside.

"G. Pardu J.A."

"I.V.B. Nordheimer J.A."

"A. Harvison Young J.A."