Ontario Court of Justice

(Toronto Region)

Between:

HER MAJESTY THE QUEEN

-and-

NADINE BAKSH (MURRAY)

Reasons for Judgment

Justice S.R. Shamai April 24, 2015

Appearances:

Aleem Baksh — Agent for the Appellant Catherine Jordan — Agent for the Respondent

Decision

This is an appeal by Ms. Baksh, now known as Murray. She appeals her speeding conviction, registered last on May 29, 2014. As the proceedings name her as Baksh, I will refer to her by that name, to avoid confusion. The allegation arose on May 12, 2009. Ms. Baksh was convicted at a first trial on January 31, 2011. On March 3, 2011, the Appellant filed an appeal and ordered a transcript of trial proceedings. Due to some confusion of change of address, the transcript was not picked up until August 14, 2013. Her appeal was allowed on October 7, 2013, with a new trial ordered. On the subsequent trial, May 29, 2014, Ms. Baksh argued that the delay in obtaining the transcript of the first trial amounted to an unreasonable delay affecting her right to be tried within a reasonable time, under section 11(b) of the Charter.

That is an issue which according to the submission of Ms. Baksh's agent, a retired lawyer, was litigated in the course of the appeal before Justice Mocha, in relation to the first trial, which resulted in the conviction on January 31, 2011. Mr. Baksh, the agent throughout, refers to comments Her Honour made in allowing the appeal, but her reasons have not been produced, neither to the presiding Justice of the Peace on the second trial, nor to this Court. The delay in bringing the appeal of the first trial cannot be a live issue before this Court: it appears that it was dealt with in the first appeal. I certainly do not propose to re-tread the grounds, to which my learned colleague Justice Mocha no doubt addressed herself. As to the timeliness of the trial itself, before Justice of the Peace Hudson, following the hearing of the appeal, nowhere in the Appellant's material does the date of the first appeal appear. A thorough review of the Court's record suggests that the Appeal was heard by Justice Mocha on October 6, 2013. The Appellant in this Court does not in any way provide that as a key date to his argument. Thus it is impossible to address myself to the timeliness of that trial. However, as the second trial was heard on May 29, 2014, delay can hardly be alleged. Conjecture is certainly not the basis upon which this Court will make a determination. This is not a case where the issue is so plain that even without argument, the Court must take it on.

Similarly, the timeliness of the second appeal, after the second trial, does not appear to be an issue: the conviction was registered May 29, 2014; notice of appeal filed June 26, 2014; transcript completed July 8, 2014; no indication when it was picked up or served and filed; Notice of Time and Place of Trial received in person, October 8, 2014; date of hearing, March 18, 2015.

Somehow, Justice of the Peace Hudson was drawn into consideration of the allegation of an unreasonable delay of the appeal, at the second trial. He was asked to consider, in fact, the events which delayed the hearing of the appeal before Justice Mocha. Given the baffling confusion of material and submissions reflected in the record, I have some sympathy for that court considering a delay which really was only tangentially related to the business of the trial on May 29, 2014, as it appears to have been the subject of the appeal, giving rise to the second trial. I say "appears" as the ruling in the appeal before Justice Mocha was not produced. Nowhere is unreasonable delay alleged, from the hearing of the appeal, granting a new trial, to the second trial date on May 29, 2014 set out.

Justice of the Peace Hudson eventually decides that the Applicant in that misguided Application had not discharged the onus upon him:

"I'm not convinced as to where the fault lies for the delay of two years in obtaining a transcript because there is information here this transcript was clearly available, prepared ready for pick-up in March of 2011. And there's really nothing clear cut to indicate why it hadn't been picked up. I'm not convinced that this is purely a systemic delay in terms of the unavailability of a transcript to you for your purposes . . . The motion is dismissed" (Transcript of May 29, 2014, p. 15 line 31 to page 16, line 9; page 17, line 9).

In my respectful view, the issue was not Justice of the Peace Hudson's to decide. It had come before Justice Mocha on Appeal, and what she made of it, I do not know. She did order a new trial. If it wove into the timing of the second trial, Justice of the Peace Hudson had ample ground to say that the history was unclear, that the Applicant seeking relief under Section 11(b) of the Charter had not discharged his burden. However, the timeliness of an appeal, affecting the timeliness of a subsequent trial, is indeed a somewhat unique set of putative facts; and I say putative, as I most certainly endorse the view at trial that the facts were not clearly established.

As to the other grounds of appeal, the Appellant contends that the learned Justice of the Peace erred in law and fact in arriving at his conclusions; and that the Defendant was left with a clear apprehension of bias and ignored the doctrine of stare decisis. In fact, a review of the transcript of May 29, 2014 shows a careful consideration of the poorly-framed arguments of counsel with regard to the Charter issue; and an equally careful consideration of the evidence of the one witness, whose evidence was called at the trial. No misdirection appears, nor can I in any way accept the suggestion of an apprehension of bias on the part of the jurist. As to the application of stare decisis, I am not at all clear, in what regard that doctrine is invoked.

In all these circumstances, the appeal is dismissed.

Justice S.R. Shamai

April 24, 2015