COURT FILE NO.: CR 16-014 AP DATE: 20170310

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

R.J.-B. Applicant

Allison Pyper, for the Applicant

• and -

Her Majesty the Queen Respondent

Michael Martin for the Crown

HEARD: March 10, 2017

ENDORSEMENT

Conlan J.

Introduction

[1] The Appellant, R.J.-B., has appealed his convictions after trial and his sentence in the Ontario Court of Justice in Owen Sound.

[2] R.J.-B. was convicted of two counts of sexual assault contrary to section 271 of the Criminal Code. The convictions were registered in February 2015 and the sentence imposed in May of the same year.

[3] On January 5, 2017, Gibson J. of this Court dismissed the Appeal pursuant to Rule 40.18(4) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).

[4] In short, having been granted an indulgence by an Order of Fragomeni J. made in August 2016 in terms of timelines for perfecting the Appeal, virtually nothing happened to move the matter ahead, and hence, Justice Gibson put an end to the proceeding.

[5] Now, more than two years after being found guilty of sexually assaulting the female victim, J.M., the Appellant asks for the dismissal of his Appeal to be set aside. The Crown, quite understandably, opposes the request.

Analysis

[6] There is no Rule or Court decision pointed to by counsel for the Appellant to support the notion that this Court has jurisdiction to do what is being requested.

[7] Nevertheless, purely out of concern for the rights of the Appellant to have his arguments, or some of them, decided on their merits, and despite the fact that the Crown’s position is probably more sound in law than that advanced by counsel for the Appellant, and without wanting this decision to be interpreted as having any application to a case without these unique facts, I have decided to reinstate the Appeal, in part and with conditions.

[8] I do so as part of this Court’s inherent jurisdiction to avoid a potential miscarriage of justice.

[9] First, it is clear to me that the Appellant is in no way at fault for the colossal mess that this Appeal has become. That is due solely to the inexperience, tardiness, and health problems on the part of Ms. Pyper. Counsel candidly acknowledges that.

[10] Second, I am satisfied that the Appellant has persistently demonstrated a bona fide intention to prosecute his Appeal, notwithstanding the mistakes made by his lawyer.

[11] Third, without wanting to embarrass counsel more than necessary by delineating the specifics of why the Appeal has languished so badly, suffice it to say that the affidavit material filed sets out, in my view, an adequate explanation for the delay.

[12] Fourth, I am of the view that the balance of prejudice favours the reinstatement of the Appeal, in part. It will be heard very quickly, avoiding any further delay. And it will not involve the possibility of a new trial, avoiding any further prejudice to the Crown’s case generally and/or to J.M. specifically.

[13] Fifth and finally, I am satisfied that the Appeal, in part, has at least an arguable chance of success.

[14] There will be no reinstatement of the Appeal from the convictions. Only that part of the Appeal that concerns the sentence will proceed.

[15] On the matter of the convictions, which counsel for R.J.-B. admits is not of prime importance, on a reading of the most recent Notice of Appeal, it is clear to me that the arguments advanced by the Appellant are completely devoid of any merit and stand no prospect of success.

[16] The decision of the trial judge to allow the complainant to testify by video link was a discretionary one. Further, there is no reason to even suspect that the verdicts would have been affected in any way had the complainant attended the Courtroom in person.

[17] The Appellant has failed to provide any particulars of how the decision of the trial judge to not admit into evidence certain “Facebook” exchanges was wrong in law.

[18] Similarly, besides a bald assertion taking up a few words in the Notice of Appeal, there is nothing asserted to indicate how or why the verdicts were “unreasonable”.

[19] Finally, on credibility and reliability findings, considering the thoroughness of the lower Court’s decision and the usual deference to be afforded on those issues, it is near certain that the Appellant’s arguments would be dismissed.

[20] On the matter of the sentence, which is really what the Appellant is concerned about, without expressing any view as to whether immigration factors justify a change to the global 35-month penitentiary sentence received by R.J.-B., it is clear that the sentencing judge heard no submissions on those factors.

[21] This Court is told that the Appellant will likely be deported from Canada to Mexico, and that deportation will have serious consequences in terms of his familial relations.

[22] The law is clear that immigration consequences are an important element of sentencing. Thus, I think that the Appellant deserves a hearing on his sentence Appeal so that those consequences can be taken into account.

Conclusion

[23] The Appeal as to sentence, only, is reinstated.

[24] The Appellant shall perfect the Appeal within one week of today.

[25] The hearing of the Appeal will be conducted before me within the next month. One-half day will be set aside for that hearing.

[26] Order accordingly.

Conlan J.

Released: March 10, 2017