COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mansour, 2020 ONCA 586

DATE: 20200918

DOCKET: M50725 (C68451)

Feldman, van Rensburg and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Mansour

Applicant

Jon Doody and Anthony Paciocco, for the applicant

Tracy Kozlowski, for the respondent

Heard: July 17, 2020 by video conference

On appeal from the order of Justice Michelle O’Bonsawin of the Superior Court of Justice, dated July 12, 2019, with reasons reported at 2019 ONSC 4150, allowing an appeal from the stay of proceedings entered on December 7, 2018 by Justice Célynne S. Dorval of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The applicant was charged with drug-impaired driving in October 2016. In December 2018, the trial judge held that his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed and stayed the proceedings. The Crown appealed. The summary conviction appeal judge allowed the Crown’s appeal, set aside the stay of proceedings, and ordered a new trial.

[2] The applicant now seeks leave to appeal to this court. With the consent of the parties, given that trial dates are set in this matter for October 2020, the panel heard the arguments on leave and the merits of the appeal together. For the following reasons, the application for leave to appeal is dismissed. Accordingly, we do not reach the merits of the appeal.

A. Procedural History

[3] The first few months after the applicant was charged with drug-impaired driving in October 2016, were taken up with the applicant’s requests for disclosure.

[4] In February 2017, the applicant’s trial counsel was appointed to the bench. In a court appearance on February 22, 2017, the applicant’s counsel’s agent requested an adjournment to review disclosure and reassign the file to other counsel.

[5] At the next court appearance on March 1, 2017, the Crown suggested that trial dates should be set. The court offered March 7, 2017, for the judicial pre-trial, but counsel’s agent asked for a later date, to allow new counsel to get up to speed on the file. The judicial pre-trial took place on March 21, 2017.

[6] Trial dates were then set for May 7 and 8, 2018. The applicant was unavailable for April 2018 dates that were offered by the court. In December 2017, the Crown brought an application to set earlier trial dates, but the applicant was unavailable for February and March 2018 dates then offered by the court.

[7] On October 23, 2017, the applicant had asked for disclosure of the drug recognition expert’s rolling logs (“DRE logs”). DRE logs contain a record of every evaluation the DRE has been involved in before or after becoming certified as an expert. The Crown refused to disclose the DRE logs, arguing that they were not relevant and that their disclosure was prohibited by s. 258.1 of the Criminal Code, R.S.C. 1985, c. C-46 (which has since been repealed) and would amount to a criminal offence.

[8] The applicant brought a motion for disclosure of the DRE logs by the Crown and the Ottawa Police Service, which was heard on April 19, 2018. On April 30, 2018, the trial judge ordered the disclosure.

[9] On May 7, 2018, the day the trial was scheduled to begin, the Crown advised the applicant that it intended to challenge the disclosure order by bringing an application for certiorari. The Crown refused to disclose the DRE logs at the same time as bringing the certiorari application, given its position that doing so was prohibited by the Code.

[10] The Crown’s certiorari application was heard in May and July 2018. The certiorari judge took the decision under reserve.

[11] In the meantime, the applicant applied to the trial judge for a stay of proceedings, alleging that his right to be tried within a reasonable time had been infringed because the delay exceeded the 18-month presumptive ceiling prescribed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The trial judge refused to hear the s. 11(b) application in September 2018 because the certiorari decision was outstanding. The application was adjourned to October 19, 2018. New trial dates were set for November 13 and 14, 2018.

[12] On October 11, 2018, the certiorari judge dismissed the Crown’s application for certiorari, upholding the disclosure order. The Crown served a notice of appeal of the certiorari decision on November 5, 2018 and refused to disclose the DRE logs to the applicant pending the appeal, for the same reasons outlined above. The Ottawa Police Service likewise appealed.

[13] Through inadvertent error, the s. 11(b) application did not proceed on October 19, 2018, but was instead adjourned to November 13, 2018, the first scheduled day of trial.

[14] The trial judge heard the s. 11(b) application on November 13, 2018, and on December 7, 2018, granted the application and stayed the proceedings.

[15] The Crown appealed. Before the appeal was heard, this court released its decisions in R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145, and R. v. Tsega, 2019 ONCA 111, 144 O.R. (3d) 561. In Stipo, this court held that DRE logs are relevant and should be disclosed by the Crown, thereby resolving the disclosure dispute in this case in the applicant’s favour. In Tsega, this court provided guidance on the proper treatment of delay caused by applications for extraordinary remedies, including certiorari.

[16] The summary conviction appeal judge had the benefit of both these decisions in assessing how to treat the certiorari delay here, which comprised the bulk of the overall delay. The summary conviction appeal judge allowed the Crown’s appeal, set aside the stay of proceedings, and remitted the matter back to the Ontario Court of Justice for trial.

B. Discussion

[17] The test for leave to appeal in summary conviction proceedings is set out in in R. v. R.(R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, at para. 32:

Leave to appeal may be granted where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case. Leave to appeal may also be granted where there appears to be a “clear” error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.

[18] The applicant asserts that the summary conviction appeal judge erred in calculating delay in three ways:

1. By deducting the time for the Crown’s certiorari application regarding the disclosure of the DRE logs;

2. By using November 14, 2018 as the end-date for trial; and

3. By increasing by ten days the period of defence delay to accommodate a change in counsel when his first lawyer was appointed to the bench.

[19] All three issues are case-specific and do not have significance to the administration of justice beyond the four corners of this case. With respect to issue (1), we see no error in the summary conviction appeal judge’s application of the rule in Tsega for determining how to treat certiorari delay. Nor do we accept that there was a “clear” error in the calculation of delay for issues (2) and (3).

(1) Certiorari Delay

[20] First, we address the summary conviction appeal judge’s treatment of the delay caused by the Crown’s certiorari application and appeal of that ruling. The trial judge considered this issue before this court’s decision in Tsega was released in February 2019. She included the certiorari delay within the overall calculation of delay on the basis that the applicant remained charged during that period and was entitled to his s. 11(b) right. She went on to find that in the event she was in error, the certiorari delay was not an exceptional circumstance. She viewed the Crown’s decision to pursue the certiorari remedy when the issue was soon to be resolved by this court in Stipo as a tactical or policy decision taken without considering the applicant’s right to a trial within a reasonable time, and that it went beyond mere complacency towards delay.

[21] By contrast, the summary conviction appeal judge had the benefit of this court’s decision in Tsega, which set out at para. 82 the test for determining whether certiorari delay should be counted in the overall delay or excluded as an exceptional circumstance:

[I]n determining whether delay caused by a Crown application should be excluded from the delay calculation, the reviewing judge must recognize the Crown’s discretion to take such steps and limit the analysis to a consideration of whether the Crown’s actions were frivolous, undertaken in bad faith, or executed in a dilatory manner. A frivolous application is one which has no arguable basis. Again, by conducting the analysis on this basis, the court is fulfilling its Jordan imposed obligation of ensuring that all justice participants are acting responsibly and ensuring that the accused’s right to be tried within a reasonable time is respected.

[22] The summary conviction appeal judge had also previously heard and dismissed the Crown’s certiorari application in this case. She concluded, at paras. 23-24 that:

In this matter, there is no evidence to support a finding that the Crown’s actions were frivolous, undertaken in bad faith, or executed in a dilatory manner. I agree with the Crown’s argument that the consequence of compliance with these orders, if it was in error, was a commission of a criminal offence contrary to s. 258.1(5) of the Code. The third party [Ottawa Police Service] also sought a review which led to a delay which was inevitable regardless of the Crown’s position.

The Crown was unsuccessful in the certiorari proceedings. However, the question to be considered is not whether the Crown was successful in its certiorari proceedings, but rather whether it was reasonable for the Crown to pursue this remedy. At this period of time, Stipo had been argued before the Court of Appeal but a decision had not yet been rendered. The court only issued its reasons in Stipo on January 7, 2019. Overall, I find the Crown’s actions were reasonable and they were neither frivolous, undertaken in bad faith, nor executed in a dilatory manner.

[23] On this application for leave to appeal, the applicant raises three proposed questions of law with respect to the certiorari delay: whether the Crown could have provided the logs and pursued its certiorari application at the same time; whether the delay was inevitable when a third party state actor was also challenging the production of the logs as third party records; and whether the Crown was acting in a dilatory manner.

[24] We see no error of law committed by the summary conviction appeal judge. She was fully aware of the facts and the arguments and applied the Tsega criteria directly. Even if there is a question of law raised here, it is not of significance beyond this case.

[25] Finally, the applicant challenges the determination by the summary conviction appeal judge that the entire period of 192 days from the date the Crown advised that it would pursue a certiorari application (May 7, 2018) to the end-date of trial (November 14, 2018) should be deducted. He argues that the time should only run from the actual date of the application (May 9, 2018) to the date of the certiorari decision (October 11, 2018), and from November 5, 2018 (the day the Crown appealed the certiorari decision) to November 14, 2018.

[26] This issue again does not warrant granting leave to appeal. It has no significance beyond this case, and we are not persuaded that the summary conviction appeal judge’s calculation of the certiorari-related delay reveals any clear error of law. During the whole period, the certiorari proceedings were still ongoing, the Crown was still refusing to disclose, and the matter could not have moved forward for those reasons. This was reasonably calculated as “the time taken for extraordinary remedies and appeals therefrom”; Tsega, at paras. 77,79.

(2) End-Date of Trial

[27] Second, we address the issue of the anticipated end-date of trial. The submission is that the summary conviction appeal judge erred in identifying November 14, 2018 as the end-date for the purpose of calculating the overall delay because that date was not the “actual or anticipated end of trial”: Jordan, at para. 49. The trial did not end on this date, and neither of the parties anticipated that it would.

[28] There is no clear error here. Both before the trial judge and the summary conviction appeal judge, the applicant relied on November 13, 2018 as the applicable end-date, arguing that the delay as of that point was unreasonable.

[29] The applicant’s trial was scheduled to take place on November 13 and 14, 2018. The trial did not proceed on November 13 and 14, 2018 because of the continuing dispute about the Crown’s obligation to disclose the DRE logs. By November 13 and 14, 2018, this disclosure was outstanding. The applicant was unwilling to proceed to trial without the DRE logs, and the trial judge declined to force the applicant to do so. Instead, on November 13, 2018, the parties made oral submissions on the s. 11(b) application.

[30] The trial judge used February 4 and 5, 2019 as the end-dates in calculating the overall delay. She incorrectly assumed that the trial had been scheduled for February 2019. The applicant’s position was that the ceiling had been breached as of the date of argument of the s. 11(b) application. November 13, 2018. Counsel used that date as the end-date for the purpose of calculating the overall delay, arguing that, although November 13, 2018 was “clearly not the end of the trial … that’s the date we’re going to work with”.

[31] On appeal, the applicant flagged for the summary conviction appeal judge that the trial judge had erred in relying on February 4 and 5, 2019 in calculating the overall delay. The summary conviction appeal judge selected November 14, 2018 as the anticipated end of trial, noting, at para. 13, the applicant’s concession that the trial judge erred by listing the anticipated trial dates as February 4 and 5, 2019, while the actual trial dates were set for November 13 and 14, 2018.

[32] The appropriate end-date was not argued before the summary conviction appeal judge in oral submissions. In written submissions, the applicant again relied on November 13, 2018 as the end-date for the purpose of the overall delay calculation.

[33] Throughout the litigation below, the parties accepted that the appropriate end-date for the purpose of calculating the overall delay was November 13, 2018, and while the applicant observed that the trial did not in fact end in November 2018, counsel did not argue that the summary conviction appeal judge should rely on any other date.

[34] Moreover, we note that the applicant has not proposed any other date that this court should rely on as the end-date for the purpose of calculating the overall delay (other than to suggest before this court a “Crown-friendly” estimate of adding an additional 30 days of delay).

[35] The absence of any identifiable end-date for the trial in this case reflects the fact that the applicant chose to proceed with his s. 11(b) application at a time when the procedural future of the matter was uncertain, because the Crown’s certiorari appeal was pending. The applicant argued that the delay was already unreasonable as of the date of the application. Given the applicant’s position before the trial judge and the summary conviction appeal judge, and the complex procedural history of the matter, it would not have been appropriate for the summary conviction appeal judge, and is not appropriate for this court, to speculate when the applicant’s trial might have concluded had the charge not been stayed.

[36] In these circumstances, given the positions of the parties before the trial judge and the summary conviction appeal judge, the summary conviction appeal judge did not make a “clear error” in relying on November 14, 2018, as the end‑date for the purpose of calculating delay.

(3) Delay Occasioned by the Appointment of Counsel

[37] It is unnecessary to address the merits of the applicant’s next argument, that the summary conviction appeal judge erred by disturbing the trial judge’s quantification of delay for when new counsel came on board (increasing the delay from 14 to 24 days). Standing alone, this ten-day period is insufficient to affect the result. Given our conclusion that leave should not be granted on the certiorari and end-date issues, even if the summary conviction appeal judge erred in interfering with the trial judge’s characterization of these ten days, that would not affect the result. The summary conviction appeal judge identified 515 days of net delay. The applicant argues for a stay only on the basis that the delay exceeded the presumptive ceiling of 18 months (which is 547 days). Adding ten days to the net delay would not put this matter over the ceiling.

C. Disposition

[38] For these reasons, the application for leave to appeal is dismissed.

“K. Feldman J.A”

“K. van Rensburg J.A.”

“J.A. Thorburn J.A.”