SUPERIOR COURT OF JUSTICE - ONTARIO

Court File: 167/09
Date: 20120111

RE: Her Majesty The Queen, Respondent v. Richard Williams, Appellant

BEFORE: Trotter J.

DATE HEARD: January 11, 2012

COUNSEL:
John J. Navarrete, Counsel for the Appellant

David E. Mitchell, Counsel for the Respondent

ENDORSEMENT

[ 1 ] Mr. Williams was found guilty of a single count of “over 80” by the Honourable Mr. Justice Peter Harris of the Ontario Court of Justice on September 8, 2009. He appeals his conviction on the basis that the learned trial judge erred in dismissing his application to have proceedings stayed for unreasonable delay, contrary to s. 11( b ) of the Charter . For the reasons set out below, the appeal is dismissed.

[ 2 ] In order to properly address one of the arguments advanced during this appeal, it is necessary to provide some context. In advance of the trial date, experienced defence counsel (who was not Mr. Navarrete, but he too is very experienced) prepared an Application Record in support of the s. 11( b ) motion. Trial counsel also prepared a 23-page Factum in support of the Application.

[ 3 ] When proceedings commenced before Harris J. on July 29, 2009, it was apparent that he had read these materials. This lead to what appellate counsel refers to as the “unorthodox” procedure employed by the trial judge. As the hearing got underway, the following exchange took place between the trial judge and defence counsel:

The Court: Could I offer maybe a suggestion, Mr. Rose? I’ve taken a look at the material. I’d normally let both of you argue it out in the fullest sense, and we’d go through everything, and hear all the discussion and submissions, and an analysis of the entire issue of 11(b). The problem I’m finding, though, is that the 11(b) application, applying for a relief from delay, actually has the effect, ironically, of delaying everything to the point where nothing ever gets done that day. And I’ve made a point of really spending some time looking at cases carefully, and if you don’t mind, I’ll give you a bit of an idea of where I think this case sits, and you’re welcome to make any submissions after that, but it might save a bit of time just going over some of the principles that I think are important, and I’ll give you a chance to respond to that. Would that be agreeable to you?

Mr. Rose: Yes, certainly, Your Honour.

[ 4 ] Following this exchange, a thorough discussion of the case ensued between the trial judge and defence counsel. After this exchange, the trial judge advised counsel that he did not believe the institutional delay and the asserted prejudice were sufficient to warrant a successful application. But he invited further submissions from counsel, saying “I am certainly prepared to listen to anything further you want to say.” Counsel accepted the invitation and made further submissions.

[ 5 ] In the end, and in thorough oral reasons, the trial judge found that 11 months of the overall delay were attributable to the Crown. However, the trial judge was not impressed with the evidence of prejudice because of two adjournments that were requested by the accused, one for personal, family reasons and the other for business-related reasons. The Application was dismissed.

[ 6 ] On appeal, it is contended that the “unorthodox” manner of proceeding revealed a reasonable apprehension of bias on the part of the trial judge. I disagree. The authorities are clear – the standard for finding an apprehension of bias is high: R. v. R.D.S. (1997) 118 C.C.C. (3d) 352 (S.C.C.). This case is not even close. Counsel are required to file their motion materials with courts in advance of proceedings for good reason. It provides the decision-maker with an opportunity to become familiar with the case ahead of time. This is precisely what Harris J. did. It is apparent from the transcript that he was well-acquainted with the record and the important issues. Indeed, the same issues were raised before me on appeal. The approach of the trial judge in this case did not undermine the fairness of the proceedings. First of all, experienced trial counsel was given a full opportunity to advance his client’s interest. Moreover, he did not complain that his ability was somehow undercut by the procedure that the trial judge used. He specifically agreed to it. When counsel was asked if he had further submissions to make, he took advantage of that opportunity. A reasonable observer, fully informed, would conclude that the trial judge came to court well-prepared and ready to deal with the live issues raised by the s. 11( b ) application. A reasonable observer would not conclude that the trial judge was predisposed to decide the case one way or another: see R. v. Czerniak (2010) 2010 ONSC 5067 , 259 C.C.C. (3d) 353, pp. 360-361.

[ 7 ] The trial judge did not err in the manner in which he dealt with the s. 11( b ) application on the merits. The trial judge attributed roughly 11 months of the total delay to the Crown. In light of the recent decision of my colleague, Code J., in R. v. Lahiry , 2011 ONSC 6780, this finding may well have been overly generous to the appellant. Moreover, I am satisfied that the trial judge’s consideration of the two adjournment requests made by the defence (as mentioned above) was appropriate. In short, I can find no error in the manner in which the trial judge disposed of the application under s. 11( b ) of the Charter .

[ 8 ] The appeal is dismissed.

TROTTER J.

Released: January 11, 2012