Court Information

Date: May 29, 2019 Offence No.: 3592-00 Ontario Court of Justice

Her Majesty the Queen v. John Black

Before: The Honourable Madam Justice B. Green Location: Oshawa, Ontario Date of Hearing: May 29, 2019

Appearances

D. Slessor – Counsel for the Provincial Crown

G. Cadogan – Counsel for John Black

Reasons for Judgment

GREEN J.: (Orally)

Good afternoon again. Thank you for giving me the opportunity to review this matter and thanks again for both the written submissions of the Crown and the written submissions of defence counsel in advance of the proceedings, it assisted greatly with being able to focus my attention on the relevant issues. I am providing an oral judgment as opposed to adjourning the matter because of the length of the matter that this has been in the system, there is a public interest in proceeding with some dispatch.

Background

This matter dates back to September of 2011 when it was alleged that Mr. Black was travelling in his red Mustang at a speed of 218 kilometres an hour in a 100 kilometre zone. He was seemingly racing with another driver in a BMW when they attracted the attention of a stationary police vehicle on the 401. After a lengthy history of court appearances and a multitude of adjournments, Mr. Black had his first trial then that was successfully appealed and he received a retrial that commenced on March the 20th, 2017.

It is now May 29th, 2019, the appellant is appealing the conviction for stunt driving and the sentence that he received in June of 2018. I will deal with the grounds for appeal against conviction in a summary fashion that were in both the written submissions and expanded on in oral submissions by Mr. Cadogan.

Appeal Against Conviction

Ground One: Jurisdiction

Counsel alleges the following errors were made during the retrial of his client. One, that the court in Oshawa did not have jurisdiction to hear the matter because the offence took place in Toronto as opposed to Durham region. During the trial the investigation officer's evidence was unequivocal and unshaken that he was stationary in a cruiser on the border of Toronto and Pickering when the appellant passed by him at a high rate of speed. Clearly, the appellant passed by the border of the two cities and he was speeding on the 401 in Durham region. This is a contrived ground of appeal. There is absolutely no evidentiary foundation for the assertion that the trial court did not have jurisdiction to hear the matter, regardless of any law on this issue. Moreover, this issue was not raised with the trial court at any point and should not be advanced on appeal.

Ground Two: Alleged Non-Disclosure of Dispatch Recording

Two, counsel has alleged for years now that the Durham Regional Police and the Crown's office have either withheld or destroyed or deleted a dispatch tape that they do not have any evidence ever existed. Rather because counsel asserts that this was a pursuit, he insists that the officer must have contacted dispatch so there must be a recording. In addition, his client testified that he saw the officer on the radio at the roadside and, therefore, there must be a dispatch recording. Finally, given the period of time that the officer spent at the roadside with his client there must be a recording of interactions between the officer and dispatch.

The problem with counsel's submissions are that, once again, there is no foundation in the evidence for these arguments. The officer repetitively testified this was not a pursuit since the appellant pulled over voluntarily as soon as the officer activated the cruiser lights and sirens. The officer did not contact dispatch, especially while driving, considering he had to focus on his own safety at such high speeds and he was accelerating rapidly to catch up to the appellant. The trial court accepted that this was not a pursuit and there is no error in that finding.

There is also no evidence of any dispatch recording, quite the contrary, the evidence is that the officer did not contact dispatch until after the vehicle was stopped. Furthermore, there was a brief recording provided to counsel from the roadside stop despite counsel's repetitive claims that he did not receive it. In fact, it was played multiple times on the record in court and both counsel and Mr. Black had plenty of time to consider what, if any impact that had on his ability to defend his client. It was the appellant's burden to establish a Section 7 breach with respect to this matter and the justice of the peace justifiably ruled that he failed to meet that burden.

Ground Three: Alleged Non-Disclosure of Second Officer

Thirdly, counsel also alleges that his client was denied his right to a fair trial because another officer was identified during the retrial as having arrived on scene after the offence was completed and after the appellant was already stopped at the roadside and that officer's notes should have been disclosed. It is hard to imagine how this officer's evidence could have been relevant to the trial since he was not a witness to the speeding according to Officer Richie. If counsel's assertion is that an officer who pulled up on scene after the offence may have been relevant to his Section 7 application, I note that is entirely speculative. Moreover, counsel had an obvious available remedy during the trial that would address this issue of an alleged non-disclosure of this potential witness. He could have asked the court to order the officer to attend or he could have asked for an adjournment to secure the officer's appearance.

In fact, that's what counsel did. He asked for an adjournment of the proceedings and it was granted by the court. Mr. Black was not prejudiced in any way by the information disclosed during the retrial that another officer stopped by the scene after the offence had been completed to assist a fellow officer. He had plenty of time to prepare for the continuing trial and any issues that they foresaw. There is certainly no record before this court as an exhibit of any attempts by counsel to secure the presence of this officer for the continuation date. Nor did counsel or Mr. Black attend the continuing trial to further this argument with respect to an alleged Charter violation. As a result, once again, the learned jurist found that the defence failed to meet its burden on this aspect of the application and it did not proceed further.

Procedural Failures and Abandonment of Application

That leads me to my fourth point. What did happen is counsel and the appellant failed to make use of the lengthy period of time availed to them to get further information or secure this witness. The matter was adjourned a number of times after the trial commenced including setting more court time aside for a continuation date and counsel and his client did not appear because counsel was ill.

Another continuing trial date was set for February 12th, 2018, almost a full year after the trial commenced and counsel did not attend nor did Mr. Black. The history of this matter is fully set out in the transcript of the proceedings on February 12th, 2018. To be very clear, all of the trial evidence, both for the Crown and the defence, had been heard on the first date in the presence of the accused or his counsel and he made an informed decision not to testify on the trial proper. The only outstanding issue was whether counsel intended to call further evidence on the Section 7 application. It is audacious that counsel now stands before this court seeking a remedy for the trial continuing in his client's absence when both he and his client showed a flagrant disregard for the valuable court time that had been set aside, at their request, for this matter to continue. They had nearly a year to organize themselves, subpoena witnesses and get ready for the application, instead they did not attend the trial continuation.

The court heard the submissions of the Crown on an ex parte trial continuation and the justice of the peace did not pre-emptively move to judgment. Rather the very patient jurist adjourned the proceedings once again to provide written reasons and issued a summons for the appellant to be compelled to appear on the date of the judgment. There were three months between the ex parte continuation date and the judgment and there is, once again, absolutely no evidence that counsel or Mr. Black made any attempt to re-open the proceedings in the interim. Finally, Mr. Black appeared on the judgment date with counsel. Her Worship provided her judgment, dismissing the Charter argument and convicting the appellant.

Here we are again with the same counsel making the same arguments without having diligently pursued obtaining an, allegedly, critical witness's presence on a continuing trial date with respect to the appellant's motion and there was no motion to re-open. Effectively, counsel and the appellant abandoned their own application by their conduct. In these circumstances, the court would have been entirely justified in summarily dismissing the Charter application but that's not what happened. The learned justice of the peace did a brilliant job of distilling what would have been counsel's submissions from the comments and objections he made throughout the voir dire and the trial for both the application and the trial proper. She provided lengthy, fulsome written reasons for dismissing the application and convicting the appellant. I see absolutely no mistake of law in the jurist's reasons. There are no mistakes of fact. The dismissal of the application was entirely justified in carefully detailed reasons and the conviction was fully supported by the uncontradicted and unshaken evidence of the officer. There was no miscarriage of justice and the appeal against the conviction is dismissed.

Appeal Against Sentence

Standard of Review

With respect to the appeal of the sentence, I may allow the appeal if the trial court made an error in principle, failed to consider a relevant factor, overemphasise a factor or imposed a sentence that was clearly wrong. I have reviewed all of the documents and confirmed that Mr. Black was originally convicted for stunt driving on October 11th, 2011. He was sentenced to 12 days incarceration and one year of a non-reporting probation order. He successfully appealed that conviction but not before he already served the full sentence of 12 days and three months of the probation order which included a condition not to occupy the driver's seat of a motor vehicle. I understand from Mr. Cadogan today, and it's not disputed by the Crown, that he also served a further six months of his licence suspension before the suspension was stayed for this appeal which I will also factor into my decision.

Original Sentencing

After Mr. Black's retrial, which is the subject of this appeal, the Crown was asking the court for a sentence of 45 days custody less the 12 days of pre-trial custody, 15 months of probation and 15 months driving suspension. The justice of the peace hearing the submissions denied yet another defence request for an adjournment of the sentencing and invited fulsome submissions. After listening to those submissions, Her Worship sentenced Mr. Black to a $6,000 fine, 15 months of reporting probation and a two year licence suspension which was nine months in excess of the suspension requested by the Crown.

Trial Judge's Considerations

The court considered Mr. Black's driving abstract including multiple convictions before and after this offence for stunt driving. I reviewed that driving abstract that was filed as an exhibit on the re-trial. From 1982 through to 2008, Mr. Black exhibited 26 years of unrelenting poor driving and various other offences like driving while suspended. In that time period there was a total of 15 convictions for speeding. Two convictions for careless driving, failing to obey lane changes and various other offences. In addition, after being sent to jail for 12 days and losing his privilege to drive after the first trial, Mr. Black was convicted two more times of speeding in 2015 and 2016 which speaks only to the fact that the jail sentence did not specifically deter him from speeding. He is a menace on the roadway.

Her Worship also relied on the nature of the factual findings that Mr. Black was speeding 218 kilometres in a 100 zone which was 118 kilometres over the speed limit on a 400 series highway and that he appeared to be racing with another vehicle and braking at those speeds. Her Worship referred to this stunt driving at page 18 of her reasons as "An egregious manifestation of the Section 172(1) it's at the end of the spectrum." Her Worship also considered the range of penalties provided for in the section which included fines from a minimum of $2,000 to a maximum of $10,000 or to a period of imprisonment for a period of not more than six months and a licence suspension, on a first offence of not more than two years.

Although the court found that the offender's driving record merited a fine at the very high end or the high end of the spectrum of the available penalties, she went on to consider his personal circumstances and the nature of his employment before she ordered a sentence of a $6,000 fine. Although she mentioned the 12 days of time spent in custody at the beginning of her reasons, she does not appear to have considered that further when assessing the amount of the fine. In addition, when the trial court ordered a two year licence suspension, there was no reference to the fact that he already spent three months not driving after the first conviction or that the Crown had only asked for 15 months suspension. I do note it wasn't a joint submission.

Legal Principles on Appellate Review

In R. v. Fagbemi, [2000] O.J. No. 2550, Justice Fairgrieve reviewed the guiding legal principles for an appellant court when reviewing the fitness of a sentence. While this appears to be a dated decision it was just very recently cited with approval by Justice Paciocco sitting in the Ontario Court of Appeal. Her Honour said at paragraphs 23 and 24 of Fagbemi:

Those principles have recently been summarized in a helpful way by the Ontario Court of Appeal in R. v. Turcotte. Under the heading, "The Limitations on Appellate Courts on Sentence Appeals":

The limitations on an appellate court in considering an appeal against sentence have been stated and recently restated by the Supreme Court of Canada. The sentencing judge's disposition must be "not fit" or "clearly unreasonable". It must fall "outside the acceptable range". In the absence of "an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. The sentence must be "in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes". The sentence imposed at trial "is entitled to considerable deference from appellate courts". "Although an appellate court might entertain a different opinion as to what objective should be pursued and the best way to do so", appellate courts should not "second-guess sentencing judges unless the sentence imposed is demonstrably unfit".

Whatever approach may have been adopted by provincial offences appeal courts in the past, it seems clear that the same restrictive scope of review that now constrains the Court of Appeal in criminal cases applies equally to P.O.A. sentence appeals. In practice, that should mean that unless an error in principle is demonstrated, or (since justices of the peace tend not to give extensive reasons for sentence) the sentence imposed is "demonstrably unfit", in the sense in which... another jurist used that phrase, the provincial judge hearing the appeal should defer to the judgment of the justice at trial and refrain from interfering.

I have instructed myself that I should not approach the appeal of a sentence by considering whether or not this is a fine or a period of suspension that I would have imposed. I have considered the recent admonishment of the Supreme Court of Canada in criminal matters in R. v. Lacasse that:

If appellant courts intervene without deference to vary sentences that they consider too lenient or too harsh their interventions could undermine the credibility of the system and the authority of the trial courts.

Again, an appeal judge may only allow an appeal against a sentence if they feel the trial court made an error in principle, failed to consider a relevant factor, overemphasised a factor or imposed a sentence that was clearly wrong.

Error in Principle

I do not agree with the appellant's written submissions that the justice of the peace ignored the gap principle. It is evident from a review of her reasons that she carefully considered Mr. Black's prior sentence before rendering a decision and his ability to pay a fine. However, in these unique circumstances, I find the court's failure to consider the relevant factors that he had already served a sentence of 12 days incarceration for this very offence and that he served three months of a probation period that prohibited him from driving resulted in an error in principle and rendered the sentence demonstrably unfit. The appeal against sentence will be granted and the sentence is varied.

Varied Sentence

The sentence will be varied as follows: I have looked up the Criminal Court days in default of non-payment of a fine. $1100 is the amount of fine which is consistent with a period of default of 12 days which the defendant had already served. As a result I will subtract $1100 from the original sentence. According the sentence will be varied to a fine of $4900 and I'll give him two years to pay that fine.

In addition, the period of suspension will be varied from the two years as ordered by the court to the 15 months that was requested by the Crown. I will further lower that amount to reflect the fact that Mr. Cadogan has indicated his client served six months so that would remain a balance of nine months so there will be a nine months licence suspension. In addition, there will be a period of probation of nine months. At this point, although I agree with the learned jurist's decision to have a reporting order, at this point I will allow the period of probation to be non-reporting. It will require Mr. Black as follows: for the period of the next nine months he's to keep the peace and be of good behaviour. Appear before the court when required to do so. The only additional term – sorry, notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation. He is not to occupy the driver's seat of a motor vehicle or operate a motor vehicle. I believe that addresses all issues with respect to this matter.

Procedural Matters

MR. SLESSOR: It does.

THE COURT: Has your client's address changed?

MR. CADOGAN: No, Your Honour.

THE COURT: So....

MR. CADOGAN: I will – it's 20 – it remains the same and the court should have [name of street], Ajax, Ontario.

CLERK REGISTRAR: 20?

MR. CADOGAN: Sorry, 20, 20, my mistake.

THE COURT: Thank you, sir. So, madam clerk, would he get notice in the mail then in addition to notice from his counsel?

CLERK REGISTRAR: He'll have to may be sign in at probation?

THE COURT: Is he present here to sign the probation order?

MR. CADOGAN: He is still here, Your Honour.

THE COURT: All right. Thank you.

MR. CADOGAN: If I can be excused?

THE COURT: Certainly. It will take a while for that to be prepared so we'll just recess for a couple minutes for you to go and speak with your client as well as to prepare the paperwork.

MR. CADOGAN: Okay.

...WHEREUPON THE MATTER WAS COMPLETED

Certificate of Transcript

FORM 2

Certificate of Transcript (SUBSECTION 5(2)) Evidence Act

I, Joan Russell, certify that this document is a true and accurate transcript of the recording of R. v. John Black in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario taken from Recording No. 2811_101_20190529_090558_POA_6_GREENB.dcr, which has been certified in Form 1.

June 28, 2019

Joan Russell

ACT ID: 6706677476

Phone: 1-855-443-2748