Court File and Parties

COURT FILE NO.: 134/17 DATE: 20190228

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GRANT ZILNEY Appellant

COUNSEL: A. Khoorshed, for the Respondent J. Wilkinson, for the Appellant

HEARD: January 16, 2019

[On appeal from the judgment of Baldwin J. dated December 19, 2016 and the judgments of Cooper J. May 1, 2017; September 7, 2017 and October 20, 2017]

MILLER J.

Endorsement

[1] Grant Zilney appeals his finding of guilt December 19, 2016 for, on June 15, 2015 committing an Indecent Act and his findings of guilt May 1, 2017 for, on August 7, 2015, committing an Indecent Act and Criminally Harassing Mary Smith. He also appeals his sentence on the latter convictions and the finding, on those counts that his right to a trial without delay, was not breached. The appeals are related as the finding of guilt May 1, 2017 was dependent on the admission into evidence of the fact and basis for the December 19, 2016 conviction.

[2] Mr. Zilney challenges the validity of the December 19, 2016 conviction on the basis that the trial judge erred in her approach to the defence evidence capable of raising a reasonable doubt. Mr. Zilney submits that the trial judge made two distinct errors: in rejecting, as not raising a reasonable doubt, his alternative explanation for the observations of the Crown witnesses and by accepting as corroborative evidence the observations of the arresting officer that Mr. Zilney’s fly was partially open upon arrest.

[3] Mr. Zilney challenges the validity of the May 1, 2017 convictions on the basis that the trial judge improperly admitted as similar fact evidence the fact and basis for the December 19, 2016 conviction; that there was a reasonable apprehension of bias; and, that the charges should have been stayed for unreasonable delay. Mr. Zilney alternatively appeals his sentence on these two charges on the basis that the trial judge erred in imposing sentences that were harsh and excessive in all of the circumstances.

The December 19, 2016 Conviction for Indecent Act

Evidence

[4] The evidence on this charge came from five civilian witnesses and two police witnesses.

[5] Chelsea Richard testified that on June 5, 2015, while rear seat passenger in a vehicle being driven by her father on highway 401, she observed a man riding a motorcycle, ahead of them, peering into car windows “really heavily” as if to see who was inside the vehicle. She described seeing a “masturbation motion” – while observing his back, she could see that the man’s right shoulder was moving up and down in a little area. His hand was not against his body, it was more out front. He did this for a minute while peering heavily into a vehicle, which she described as a light grey Acura.

[6] Chelsea Richard testified that as their truck pulled up next to the motorcycle she actually saw the man’s erect penis. His hand was on his penis. The man was right beside her rear passenger window about two to three meters away. The man looked into her car side window. She saw his exposed penis for four to five seconds before she turned away. She testified that “either the zipper was open or a button was undone”.

[7] Chelsea Richard was cross-examined about whether what she saw was skin exposed around the rider's abdomen and whether what she saw was a rubbing motion. She maintained that what she saw was an exposed penis.

[8] Victor Richard, who was driving the Richard vehicle, testified that he noticed a motorcycle pass him on his left in the passing lane. He identified the bike as a Victory motorcycle. Mr. Richard’s attention was drawn to the rider of the motorcycle as he could see the rider of the bike peering into a SUV. It drew his attention because it went on long enough to give him the impression that the SUV had done something to the bike driver or that he knew the occupants of the SUV.

[9] As this was going on, Mr. Richard testified that he watched the rider's left hand come off the handlebars and it went down to his lap area. He also watched the rider's hand going up and down in a motion from his crotch area. It was his “absolute opinion” that the man on the motorcycle was masturbating. He saw this movement for 8 to 10 seconds with traffic moving at speeds of 110 to 120 kilometres an hour.

[10] Mr. Richard testified that the rider then put both hands back onto the handlebars and came back into the passing lane to clear a slower moving vehicle. Mr. Richard described this as a dangerous move. Mr. Richard testified that he then saw the rider go back into the middle lane again and speed up to the SUV again and continued to do the (masturbation) motion for another 5 to 10 seconds. Mr. Richard testified that he slowly accelerated up beside the motorcycle rider. As they passed the rider, his daughter said, "Oh my God, Dad. He has his penis out".

[11] Mr. Richard then called police. He testified that his wife, who was in the front passenger seat of his vehicle, got the plate number of the bike. The plate had been altered in some fashion making the last digit difficult to read. They also provided the plate number of the grey Acura that the rider had been beside to the dispatcher. Thirty to forty seconds later he watched the rider exit the 401 at Highway 25. Mr. Richard testified that he continued westbound on the 401 and at one point pulled beside the grey Acura and noted two female occupants.

[12] Mr. Richard was cross-examined about whether what he observed was a "rubbing" motion. He did not agree and maintained that what he saw was an up and down motion. When it was suggested that the motion was a rubbing up and down motion in the lower abdomen area close to the groin, Mr. Richard agreed with that.

[13] Tracy Richard testified that she was in the front passenger seat of the vehicle being driven by her husband when she noticed a black motorcycle weaving in and out of traffic and pulling up very close to the passenger side of the vehicle and “really” peering into cars. It looked to her like the rider was looking for somebody because of how attentive he was being and how close he was to the cars.

[14] The motorcycle changed lanes and came along her side of the vehicle and the rider made eye contact with her. She looked away from him. After they made eye contact, the motorcycle sped up and that is when she noticed a motion with the rider’s left hand as if he were masturbating. He then pulled up very closely alongside the passenger side of an Acura SUV and then again was making motions with his left hand as if he were masturbating. His hand was going up and down for maybe 30 seconds. She heard her daughter say she had seen the man’s penis. Her husband then called 911.

[15] Mrs. Richard testified that had a clear view of the motorcycle plate but the last digit was obscured by something surrounding the plate. It was either Ontario marker 850Z8 or 850ZB. She kept on eye on the bike until it exited on Highway 25.

[16] Halton Regional Police Officer Barkhouse testified that on June 5, 2015 he was advised by dispatch at 2:19 p.m. that a man had been masturbating on a motorcycle on the 401 Highway and had exited at Highway 25. He had a plate number of 850Z8 for the Victory black motorcycle which was registered to Grant Zilney, date of birth January 13, 1965, with an address in Acton of 5336 Erin First Line, R.R. #3. Officer Barkhouse was travelling westbound on Side Road 25 in Halton Hills about 5 to 10 kilometres from Highway 25 when he saw the described motorcycle pass him. He got behind the motorcycle, put his lights on and stopped it.

[17] Officer Barkhouse testified that Grant Zilney was the rider of the motorcycle. Mr. Zilney produced his driver's licence and was advised of the complaint. Officer Barkhouse testified that Mr. Zilney appeared calm and unmoved by the allegation. There was no reaction from him at all.

[18] Mr. Zilney told Officer Barkhouse that something had hit him on his stomach and then showed the Officer a small red mark about 4 inches above his belt line. Officer Barkhouse described it as the size of a mosquito bite. There were small red marks around it. He said he had been rubbing his stomach while riding and maybe that was what the people had observed.

[19] Halton Regional Police Officer Lyons testified that Officer Barkhouse was already dealing with Mr. Zilney when he arrived at the scene of the stop at 2:43 p.m. Officer Lyons noted that Mr. Zilney was dressed in a black/grey motorcycle suit. The pants had a Velcro fly that was half open. There was fabric behind the Velcro fly and two snap buttons.

[20] Naila Hosein testified that she is the owner of the grey Acura SUV and was travelling on the 401 heading to London June 5, 2015. She testified that she did not recall anything happening on the 401 as she was driving. The police contacted her sometime after June 5, 2015. Asanka Jayasinghe testified that she was the front seat passenger in Naila Hosein's car. The police contacted her sometime in November of 2015 and asked her if she saw someone looking into the car and committing an indecent act on June 5, 2015. She testified that she did not see anything.

Analysis

[21] It is Mr. Zilney’s position that the trial judge made two errors when considering the defence evidence. First, she improperly treated the direct evidence of the Mr. Zilney's explanation as circumstantial evidence and shifted the burden onto him to provide a reasonable explanation". Second, she did not consider the defence evidence in the context of all the other evidence when deciding whether the Crown had proven its case beyond a reasonable doubt.

[22] Central to Mr. Zilney's defence was the explanation he provided upon his arrest about being hit by debris and rubbing his abdomen under his shirt. This explanation was led by the Crown in its case in-chief. It is Mr. Zilney’s position that this explanation was confirmed by Officer Barkhouse's observation of the red scratched area on his abdomen which he showed the officer. It is Mr. Zilney’s position that the trial judge's reasons for rejecting the alternative explanation reveal she reversed the burden of proof and erroneously treated his direct evidence as though it was some competing inference based on circumstantial evidence to which the rule in Hodge's case applied.

[23] Counsel for Mr. Zilney cites the following cases in support of this proposition: R. v. Rattray, 2007 ONCA 164, paras. 7 to 15; R. v. Phillips, paras. 35-36; R. v. G.(H.), paras. 14 to 15; R. v. Phung, 2007 ONCA 352, paras. 4-6; R. v. Narain, [1999] O.J. No. 3736 (C.A.); R. v. M. (G.) [2003] O.J. No. 4250 (C.A.); R. v. Mathieu, 90 C.C.C. (3d) 415 and R. v. Edgar, 2010 ONCA 529.

[24] These cases establish that inquiring whether the accused's evidence might reasonably be true reverses the onus of proof, does not accomplish the objective of the W.(D.) analysis and is therefore an error. Rather, the proper approach, in accordance with the second step of W.(D.), is for the trier of fact to determine whether the accused's evidence raises a reasonable doubt, and acquit if it does.

[25] The impugned portion of the trial judge’s Reasons for Judgment is as follows:

I reject the Defence alternative explanation after considering all of the evidence because it is not reasonable. Alternative inferences must be reasonable, not just possible. Reasonable doubt does not arise from speculation or conjecture. Reasonable doubt must be based on reason and common sense.

[26] It is Mr. Zilney’s position that the trial judge was obliged to explain why this evidence did not raise a reasonable doubt, and why she rejected it, and that she did not do so.

[27] I note that in the G.(H.) decision at paragraph 15, the Court of Appeal found as follows:

We agree that the trial judge erred in the words she chose to state her understanding of the second branch of W.(D.): see R. v. Phillips (2001), 154 C.C.C. (3d) 345 at 357-8 (Ont. C.A.). However, in the circumstances of this case, it is clear that the trial judge completely rejected the appellant's testimony and found the Crown case overwhelming. Accordingly, we do not regard her slight slip in formulation as fatal.

[28] The trial judge here did not use the words “might reasonably be true”. She did refer to alternative “inferences”. The remainder of that paragraph in her Reasons for Judgment together with the Reasons for Judgment as an whole demonstrate that despite using the word “inferences”, the trial judge was in fact correctly applying the second part of the W.(D.) test. As well, as in G.(H.), it is clear that the trial judge completely rejected the Appellant's explanation for the observations made by the Crown witnesses and that the trial judge found the evidence of the Crown witnesses both credible and reliable. It is not an error to assess the defence evidence in light of the evidence as an whole: R. v. Hull, [2006] O.J. No. 3177 at paragraph 5.

[29] When it came to assessing Mr. Zilney’s explanation for the Richards' observations the trial judge said:

I am not left in a reasonable doubt based on the explanation Mr. Zilney provided to Officer Barkhouse. A tiny scratch mark the size of a mosquito bite does not explain the erratic driving; it does not explain the masturbation movements observed by the Richard family; it does not explain why he was trying to make eye contact with women; it does not explain why Chelsea saw an erect penis.

[30] It is Mr. Zilney’s position that this aspect of the trial judge's reasons demonstrate the trial judge shifted the burden onto the appellant to provide an explanation for the Crown evidence, instead of considering whether in the context of all the other evidence the defence evidence and denial raised a reasonable doubt.

[31] I find that this portion of the trial judge’s Reasons for Judgment demonstrate that she did properly consider and apply all parts of the W. (D.) test.

[32] It is Mr. Zilney’s position that the trial judge misapplied the presumption of innocence and the burden of proof when considering the defence evidence and that this is borne out by a second error. The trial judge concluded the Richards' evidence was corroborated by the evidence of Officer Lyons who observed the appellant's fly was down. It is Mr. Zilney’s position that apart from mentioning the fact the fly was not a functional one as proved by the defence, the trial judge did not explain how Officer Lyons' evidence helped. It is Mr. Zilney’s position that when considered in the context of the defence evidence, Officer Lyons' observation was neutral at best.

[33] The Reasons for Judgment demonstrate that the trial judge understood and carefully considered the defence evidence capable of corroborating Mr. Zilney’s statement to the police in which he denied that he had been masturbating on the motorcycle and offered the explanation that the Crown witnesses might have seen him rubbing his abdomen. With respect, I am not prepared to find that the trial judge erred because she did not state the obvious in respect to how evidence that Mr. Zilney’s fly was down when stopped by police minutes after the Richards had reported that his penis was exposed and that he had been masturbating was corroborative.

[34] The trial judge took into account that the two women in the Acura did not notice Mr. Zilney peering into their vehicle and did not see him masturbating on the motorcycle. It was open to her to find that this evidence did not raise a reasonable doubt that Mr. Zilney had nonetheless done those things.

[35] The trial judge considered both the mark on Mr. Zilney’s abdomen observed by the arresting officer, and that the other officer at the scene noted that Mr. Zilney’s fly was undone. That officer was shown by defence counsel a pair of pants which the officer testified he believed to be the pants worn by Mr. Zilney at the time of his arrest. As revealed by the transcript, since the pants were never made an exhibit or identified by anyone as the pants worn by Mr. Zilney that day, the officer agreed that the pants being shown to him in the courtroom had an expandable portion of material in the fly area rather than a traditional opening. The trial judge referenced this evidence in her Reasons for Judgment. It was not necessary for her to spell out that even if those were the pants worn by Mr. Zilney that day, the officer’s observation that the top button of the fly area was undone supported the evidence of Chelsea Richard that she had seen Mr. Zilney’s exposed penis not long before he was stopped by police.

[36] I find there is no basis to conclude from this that the trial judge misapplied the presumption of innocence or the burden of proof in respect of this evidence.

[37] The appeal on this charge is dismissed.

The May 1, 2017 Convictions for Indecent Act and Criminal Harassment

[38] Mr. Zilney appeals his convictions May 1, 2017 for Indecent Act and Criminal Harassment.

[39] The evidence on these offences came from the testimony of Mary Smith together with the evidence of Cameron Bokstein and the similar fact evidence tendered by the Crown and accepted as admissible evidence by the trial judge.

[40] Mary Smith, age 17 at the time of the offences, testified that on three occasions between July 31, 2014 and August 7, 2014 as she was walking or running on Dublin Line on the outskirts of Acton she was approached by a man on a motorcycle. The area was described as a lonely road with few houses on it and with large gaps between the houses. On the first occasion the man passed her three times over 15-20 minutes slowing down to look at her. He did not stop or speak to her. The man was riding a black cruiser-type motorcycle. He was white with a dark helmet with a visor partially covering his face.

[41] On the second occasion the man was whistling, commented on her shorts and said “keep running for me”. He passed her twice within about 15-20 feet. It appeared to be the same motorcycle and she believed it to be the same man, dressed the same as on the first occasion.

[42] On the third occasion, August 7, 2014, the man was either stationary or driving slowly and made an up and down motion with his hand as if masturbating. He drove by again, within 15-20 feet and she saw his exposed penis. It was erect, he had his hand on it and was moaning. He was practically stopped; masturbated for 30-40 seconds then left. She saw him again on highway 7 and she then reported it to police. She agreed in cross-examination that when she saw the man on highway 7 he was with another motorcyclist and they were both making masturbation gestures. She agreed that she had been shown a photo line-up by police and could not pick out the man she had seen with the exposed penis.

[43] Cameron Bokstein was the police officer to whom Mary Smith reported the matter on August 7, 2014. Officer Bokstein was on duty on August 21, 2014 at approximately 3:00 p.m. when he observed a motorcycle on Dublin Line at the 22 Sideroad. The motorcycle was a black cruiser-type motorcycle, Victory brand with a bent licence plate. The plate number was 850Z8. The driver of the motorcycle was the Appellant Grant Zilney who produced identification with an address of 5336 Erin First Line, just North of Acton. Mr. Zilney was warned about the licence plate at that time but not ticketed.

[44] The similar fact evidence presented by the Crown was the conviction of Grant Zilney December 19, 2016 for the offence committed June 5, 2015. The evidence was presented by way of transcripts of evidence from the trial before Baldwin J. and Baldwin J.’s Reasons for Judgment.

Similar Fact Evidence

[45] Mr. Zilney’s position is that the trial judge erred in admitting as similar fact evidence the facts supporting Mr. Zilney’s finding of guilt on the charge of Indecent Act committed June 5, 2015.

[46] The Crown’s position is that the trial judge correctly admitted this evidence and properly relied on it in finding Mr. Zilney guilty of the offences alleged to have been committed in relation to Mary Smith August 7, 2014.

[47] Counsel agree on the law applicable to the admissibility of similar fact evidence. They disagree as to whether it was properly applied by the trial judge.

[48] The Supreme Court of Canada cases of R. v. C.R.B. and R. v. Handy, 2002 SCC 56 have established the approach to be taken in determining the admissibility of prior disreputable conduct:

Evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury. C.R.B. at paragraph 24

[49] While many of the cases refer to “prior” disreputable conduct the conduct considered is any “other” disreputable conduct which is not the subject matter of the charges in the instant case.

[50] “Striking similarity” is no longer the test. It is recognized that there is no closed list of the sort of cases where such evidence is admissible. It is well established that it may be admitted to rebut a defence of legitimate association for honest purposes, as well as to rebut evidence of good character. C.R.B. at paragraphs 25 and 27.

[51] However, the probative value of evidence may increase if there is a degree of similarity in circumstances and proximity in time and place. C.R.B. at paragraph 26, citing R. v. Robertson.

[52] It is clear that the onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. Handy at paragraph 55.

[53] “[W]here the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception. The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence and the offences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end of determining whether, in the context of the case before him, the probative value of the evidence outweighs its potential prejudice and justifies its reception.” C.R.B. at paragraph 31.

[54] It is incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. Handy at paragraph 74.

[55] In addition to Handy, counsel for Mr. Zilney has referred me to the cases of R. v. Arp; R. v. B. (D.), 2016 ONCA 673; R. v. Woodcock; R. v. J.A.T., 2012 ONCA 177; and R. v. Bent, 2016 ONCA 651 and 2016 ONCA 722 in support of his submission that the incidents were too disparate in their mode of commission to meet the test of “striking similarity”.

[56] Counsel for Mr. Zilney identified the following differences in the incidents:

(i) The instant case involved repeated acts of following in a small geographic area targeting a single complainant whereas the second incident involved random acts directed at more than one vehicle; (ii) The instant case involved a second person on a motorcycle acting in tandem with the first and engaging in the masturbatory conduct whereas the second incident was a lone rider; (iii) The instant case involved driving very slowly on a smaller rural route whereas the second incident involved driving on a major highway at high speeds; and (iv) The instant case involved speaking to the complainant in a sexually provocative way whereas the second incident did not involve any comments to the targets.

[57] In contrast, the Crown, in addition to Handy relies on R. v. Nicholas, leave to appeal dismissed [2004] S.C.C.A. No. 225; and R. v. Adeyokunnu [2011] O.J. No 5356 (S.C.J.) in support of their position that there is a "unique trademark" or a series of significant similarities in this case demonstrating that it is likely the same person who committed the alleged acts.

[58] The Crown relies on Nicholas at paragraph 67 and R v. Nelson, [2007] O.J. No. 2075 (S.C.J.) in support of their submission that the analysis must be whether, cumulatively, the evidence renders the similarities sufficient to render it objectively improbable that two different people committed such similar acts.

[59] In R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 at paragraph 53 the Court of Appeal, referencing R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at paragraphs 21-22, indicated that:

The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:

i. proximity in time and place; ii. similarity in detail and circumstances; iii. number of occurrences; iv. any distinctive feature(s) unifying the various incidents; v. intervening events; and vi. any other factor that tends to support or rebut the underlying unity of the similar acts.

[60] The Crown points to the following factors in support of the admissibility of the other discreditable conduct:

a) These alleged offences took place on Dublin Line in Acton, a small community. Mary Smith saw the same man following her on three occasions in the same area. The person in the similar fact case exited the 401 at Highway 25, which leads toward Acton; b) Mr. Zilney did, in fact, live just north of Acton; c) These acts and the similar fact acts took place within the span of less than one year; d) The perpetrator described by Mary Smith was driving a black cruiser-style motorcycle, while wearing a helmet and sunglasses. The helmet exposed enough of his face to show that he was a white male, but his eyes were covered by either sunglasses or a visor. This was also the case for Mr. Zilney on both August 21, 2014 (when stopped by P.C. Bokstein) and June 5, 2015, when he committed the second offence. e) There is no question that, on the dates of the incident with the Richard family and on the date that Constable Bokstein stopped him, the driver of this motorcycle was Grant Zilney. The licence plate and driver's licence verified that; f) When P.C. Bokstein stopped Mr. Zilney, it was on Dublin Line, the same quiet road on the outskirts of Acton where the offences against Ms Smith had occurred; g) In one of the events with Ms Smith and when Mr. Zilney stopped by P.C. Bokstein, the white male wearing all black on the black motorcycle had removed his helmet and put on prescription glasses; h) There was no possibility of collusion between Ms Smith and the Richard family; they did not know each other and were not even aware of the other event or charge; i) The man described by Mary Smith riding the motorcycle on Dublin Line in the area of Acton while wearing a helmet and dark sunglasses pulled out his penis and masturbated while on a moving motorcycle, as had occurred in the matter tried before Justice Baldwin.

[61] The Crown submits that this constellation of factors, and in particular the similarity of the indecent acts committed on each occasion, which the Crown submits is sufficiently unique to constitute a "trademark", render the similar fact evidence highly probative of the fact that the individual in each case was the same person.

[62] The Crown, relying on R. v. J.W., 2013 ONCA 89, submits that this determination by the trial judge is owed deference and the appellate court should only intervene if the finding was patently unreasonable.

[63] The Crown submits that the risks posed by the potential prejudices identified in Handy – moral and reasoning prejudice - are substantially reduced in the context of a trial before a judge without a jury as judges are presumed to know the law and to be capable of disabusing their minds. In this the Crown relies on R. v. J.M, [2016] O.J. No. 3549 (OCJ) at paragraph 12; R. v. C.K., 2015 ONCA 747 at paragraph 41; [R. v. B.(T.), (2009] 2009 ONCA 177, 95 O.R. 3d 21 (C.A.) paragraphs 26-29](https://www.canlii.org/en/on/onca/doc/2009/2009onca177/2009onca177.html#par26); and. J.W. at paragraph 57.

[64] As noted by the trial judge in his ruling, the purpose for which the Crown sought to introduce the similar fact evidence was primarily on the issue of identity. Other bases put forward by the Crown for the admissibility of the proffered evidence were as proof of the actus reus of the offence and the rebuttal of any defence of accident or lack of intent, in addition to support the credibility of the complainant, and lastly, proof of a pattern of inappropriate sexual conduct while riding a motorcycle.

[65] The trial judge here reviewed the applicable law, in particular Arp and Handy. He referred to the need, in a case where similar fact evidence is tendered to prove identity, for a high degree of similarity between the acts in order to ensure that the similar fact evidence has the requisite probative value to outweigh its prejudicial effect. The trial judge adverted to the need for a unique trademark or signature or such a degree of similarity between the acts that it is likely that they are committed by the same person. It is also clear in his ruling that that the trial judge was alive to and mindful of potential prejudice.

[66] The trial judge found that the probative value of the proffered evidence “far outweighs the prejudicial effect and, as a result, the similar fact evidence is ruled admissible in this trial on the issue of identity and the other categories that the Crown wanted it to be admitted on.”

[67] The finding made by the trial judge was available on the evidence, and, is further, one that I agree with. The similar fact evidence proffered was, on an analysis of all the evidence, highly probative of the fact that Grant Zilney was the person complained of by Mary Smith. The trial judge was alive to the potential for moral prejudice – the potential misuse of the evidence by the trier of fact to infer guilt based on a general disposition to commit offences. The risk of reasoning prejudice here was low, as the evidence was focussed and indeed admitted on the voir dire by way of transcripts of the evidence and Baldwin J.’s Reasons for Judgment.

[68] I conclude that the trial judge did not err in admitting the similar fact evidence.

Reasonable Apprehension of Bias

[69] Mr. Zilney submits that various comments made by the trial judge, when counsel for Mr. Zilney requested adjournments to present argument on s. 11(b) of the Charter and sentencing, and in the course of his Reasons for Sentence provide a basis for a reasonable apprehension of bias.

[70] The Crown submits that the comments by the trial judge were appropriate and proper.in all of the circumstances. The Crown submits that no bias or apprehension of bias has been demonstrated.

[71] The Supreme Court of Canada in R. v. R.D., [1997] 3 S.C.R. 484 at paragraph 31 indicated that the test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

[72] I have reviewed the trial judge’s interaction with counsel in respect of the adjournment for the s. 11 (b) Application and for sentencing. I have also reviewed the trial judge’s interaction with Crown counsel in respect of the presentation of the joint position on sentence. I find nothing improper in these exchanges, nor any basis to conclude from these, individually or cumulatively, a bias or a reasonable apprehension of bias.

[73] However, in the course of his Reasons for Sentence, the trial judge remarked as follows, in respect of the fact that the complainant had to testify on the trial:

Guilt was obvious, in my view. The defendant did not testify. His license plate was identified on a black Victory motorcycle, which was also involved in the matter that I am sentencing him on…My concern is that the defendant cannot be treated if he does not admit his guilt. Granted, one is entitled to a trial, but in my view, the guilt, as I said was very obvious here.

[74] The Crown submits that “while having a trial is not an aggravating circumstance, it is very clearly the absence of a mitigating circumstance. Also, the fact that an accused person has no remorse or insight into his offences, as demonstrated by continued denial, can quite properly be considered as informing the reduced prospect of rehabilitation. In particular, in a case like this one, where treatment may be necessary to control future dangerousness, the failure to acceptance responsibility was a critical factor to consider in determining the Appellant's prospects for rehabilitation. At no point did the Trial Judge refer to either of these circumstances as aggravating. His comments are completely consistent with these factors being considered as the law permits.” The Crown relies on R. v. Bastien, [2011] O.J. No. 1387 (C.A.); R. v. Hawley, [2016] O.J. No. 893 (C.A.) and R. v. Levert, [2001] O.J. No. 3907 (C.A.) in support of this position.

[75] I am of the view that the trial judge’s comments that “guilt was obvious” and “guilt was very obvious” give rise to a reasonable apprehension of bias. On this basis I would agree with this ground of appeal and order a new trial.

[76] As a new trial would be unnecessary if the charges were stayed pursuant to s. 11(b) of the Charter, I go on to consider that ground of appeal.

11(b)

[77] Both parties agree that the first consideration here is the new framework established by R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 that being a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling was set in that case at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

[78] Jordan established that if the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. Jordan at paragraphs 46-47.

[79] It is also clear that exceptional circumstances required to rebut the presumption must lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely un-common. Jordan at paragraph 69.

[80] Mr. Zilney’s position is that properly calculated the total net delay in this case is 22 months and 11 days which exceeds the presumptive Jordan ceiling by 4.5 months and therefore these charges should be stayed.

[81] It is the Crown’s position that the net delay in this case, after subtracting defence delay and discrete events that qualify as exceptional circumstances, was approximately 12 months. This would be well within the Jordan timeframe for summary conviction offences.

[82] The difference in the calculation of time as between the parties centres on the proper legal allocation of time taken by a judge to render a decision once a trial is otherwise completed.

[83] The trial judge made the following findings in respect of the chronology of dates and events:

2015 August 4- Information sworn; August 31- Disclosure and screening form provided-Agent for Mr. Giourgas requested September 28, 2015, to review disclosure. September 28- Crown was not in a position to set a date for a judicial pretrial, and the matter had to go over to October 5. October 5-A judicial pretrial was set for October 16; October 16- The first judicial pretrial was held before me. Defence counsel asked the case to be put over to November 23, to allow him to consult with his client. S. 11 (b) was waived. November 23-Consent adjournment to January 16, 2016 -Mr. Giourgas requested this length of time due to the present case dependent on outcome of a trial before Justice Baldwin in Halton on similar charges which arose before those in the present case - Mr. Giourgas said the Crown may bring a similar fact application in the present case if the case before Justice Baldwin results in a conviction.

2016 January 16-A trial was set in the present case for September 13 and 14, 2016. A second judicial pretrial was set for June 20, 2016. May 18-19- The trial of the first set of charges took place before Justice Baldwin, and her decision was reserved until December 19, 2016. June 20- A second judicial pretrial was held before me. Because Justin Baldwin’s decision would not be released before the trial set for September 13 and 14, 2016, on the present charges, the trial was put over to February 15 and 16, 2017. Mr. Giourgas agreed to those dates but indicated on the record that he was not waiving section 11(b) of the Charter. July 8- The Supreme Court decision in R. v. Jordan is released. December 19 - Justin Baldwin's judgment on the first set of charges is released.

2017 February 15-The first day of trial on the present charges took place and the Crown's similar fact application was argued and judgment was reserved until February 16. February 16-The similar fact application was allowed, and the similar fact evidence and all trial evidence was heard. Judgment was reserved until May 1, 2017. May 1-The defendant was convicted of both charges. -Mr. Giourgas said he would bring a section 11(b) application and the case went over to June 13, 2017, for that application and for sentencing. On June 13, the defence asked the matter to be adjourned to June 15, 2017. June 15- The section 11 (b) application was argued and the period of delay was agreed to be from the swearing of the information on August 4, 2015, and May 1, 2017, the date of conviction on the present offences. Judgment was reserved until September 7, 2017, and sentencing would not proceed on that date.

[84] The trial judge, referencing Jordan at paragraphs 46-66, found as follows:

The only defence delay which, in my view, ought to be deducted from the overall time period is from the first pretrial date of October 5, 2015, when the defence waived section 11(b) and asked the case to go over to November 23, 2015, to allow counsel to consult with his client. This amounts to one month and 8 days.

[85] There is no issue as to the finding of the trial judge in respect of delay attributable to the defence.

[86] In respect of delay due to reserving judgment on the trial, the trial judge relied on R. v. K.G.K. (Kehler), 2017 MBQB 96, [2017] M.J. No. 148 (Q.B.) finding “the period from February 16, 2017, when the trial evidence and submissions in the present matter were concluded, until May 1, 2017, when my judgment was delivered, will not be considered in the unreasonable delay calculation.”

[87] The trial judge found that the delay to be considered, therefore, was 18 months and 13 days, and after deducting the defence delay, the total 17 months and 5 days, below the 18 month presumptive period for summary conviction matters.

[88] The Crown’s position is that the time taken by each of the trial judges to render a decision on their respective trials are discrete events which should be deducted from the total delay in respect of whether the delay is unreasonable. The Crown relies on these facts in support of their position:

On November 23, 2015, a trial on the "similar fact" matter was set for May 18, 2016. It was openly discussed and known to all from the early stages that the Crown intended and needed to rely upon the result of that charge (ultimately tried before Justice Baldwin) as evidence on this set of offences. As a result, it was also known that this set of charges had to be tried after that charge was completed.

On May 18, 2016, the similar fact matter before Justice Baldwin was tried. Justice Baldwin indicated that, in order to be certain of some aspects of the evidence, she required a transcript of the evidence, and therefore needed to reserve her judgment. Defence counsel advised the Court (Justice Baldwin) that he was going to be largely unavailable after October 3, 2016 until approximately December 15, 2016. The Trial Judge suggested a return date for judgment of December 19, 2016 but, acknowledging that this would be outside of the 6 month directive for releasing judgments, asked defence counsel if he would consent to that length of time. Defence counsel then freely offered his agreement to this delay.

Defence counsel was aware, at the time of consenting to the delay before Justice Baldwin on May 19, 2016, that it would result in this trial being delayed, but did so nonetheless. It would have been inappropriate for the Crown to advise Justice Baldwin that Mr. Zilney had another set of similar charges, for fear of tainting Her Honour. The delay resulting from the length of time Baldwin J. reserved her decision was unforeseen by the Crown, outside of the Crown's control, and impossible for Crown counsel to remedy. It therefore fit directly into the definition of discrete event set out at paragraph 69 of Jordan.

As a result of the delay to receipt of Justice Baldwin's decision, the trial of this matter had to be adjourned. The trial date was rescheduled to February 15 and 16, 2017. At this point, before Justice Cooper, defence counsel indicated that s. 11 (b) "is going to be an issue ... For a certainty."

On January 16, 2017, 6.5 months after telling the court that a s. 11 (b) application would be brought, defence counsel filed a Form 1 Notice of as. 11 (b) Application, with no factum. There was no request or attempt to bring the matter forward for the s. 11 (b) application or to have it heard in advance (at least 60 days before the trial), as required by the Rules of the Ontario Court. The Application was first brought to the attention of the Court on the Trial date.

The trial proceeded on February 15, 2017 and, on February 16, 2017, the Trial Judge allowed the similar fact application and reserved his decision on the trial proper until May 1, 2017. On May 1, 2017, Trial defence counsel was unavailable to attend and sent a student-at-law in his stead. The Appellant was found guilty as charged. The defence requested an adjournment, at that point, to perfect and argue its s. 11 (b) application, and for sentencing. The matter was adjourned to June 13, 2017 (and later moved to June 15, 2017).

On June 15, 2017, the s. 11(b) application was argued. The matter was adjourned to September 7, 2017 for decision. On September 7, 2017, the s. 11 (b) application was dismissed. Though the Court and the Crown were prepared to proceed to sentencing, and though Mr. Zilney had also been facing sentencing on the charge before Justice Baldwin, he sought an adjournment of the sentencing to take steps to prepare for sentencing.

Sentencing submissions were completed on October 17th. The sentence was handed down on October 20, 2017.

[89] The Crown submits that three periods of time are discrete events that meet the test for exceptional circumstances:

a) The period from September 13, 2016 to February 15, 2017 (resulting from the reserve, on consent, of Justice Baldwin's decision; b) The period from February 16 to May 1, 2017 (resulting from the reserve of Justice Cooper's trial decision); c) The period from June 15, 2017 to September 7, 2017 (resulting from the reserve of Justice Cooper's 11(b) decision). Note that the Respondent submits that this period is not part of the overall delay in any event, as the presumptive ceiling ends when there is a verdict, which occurred on May 1, 2017.

[90] The Crown submits that while the Crown agreed to a larger amount of time (still below the ceiling) when argued before Justice Cooper, the Crown is justified in taking a revised position on appeal based on the following:

a) As the Respondent, the Crown may make any argument to support the order of the court below, including new arguments; Regina v. Keegstra (1995), 98 C.C.C. (3d) 1 (S.C.C.) at para. 23 b) At the time when this was argued, post-Jordan 11 (b) analysis was in its infancy, and has been developed further since; c) The details of defence counsel's concession of delay before Justice Baldwin were unknown to the Crown in this matter at the time when the s.11 (b) application was argued.

[91] Mr. Zilney’s position is that properly calculated the total net delay in this case is 22 months and 11 days which exceeds the presumptive Jordan ceiling by 4.5 months. Counsel for Mr. Zilney submits that when the case ended on February 15th, 2017 the trial judge and the Crown knew any further adjournment to render judgment might put the case over the new presumptive ceiling. Counsel for Mr. Zilney put the trial judge on notice that Jordan now governed and delay was an issue. Counsel for Mr. Zilney submits that the trial judge had a 29 day window within which to prioritize his other reserves and to render judgment in this case, even if it only meant a bottom line verdict with reasons to follow.

[92] The Supreme Court of Canada in Jordan did not determine whether, as a general rule, time taken by the Court to render decisions would be deducted from the presumptive ceiling. Under the Morin regime, this time, except in extreme cases, was deducted as neutral.

[93] The Crown submits that this was for good reason: arguably the most critical part of the trial is the decision. Trial Judges must not be rushed to arrive at a conclusion. It is very much in the interests of justice, for decisions to be carefully considered. Just as the right to be tried within a reasonable time is a constitutional mandate, so is judicial independence. Neither should apply to subrogate the other.

[94] In this the Crown relies on decisions from a number of courts which have considered this question and arrived, on different bases, at the conclusion that judicial reserve time should not be included in the presumptive ceiling:

R. v. K.G.K. (Kehler), 2017 MBQB 96, [2017] M.J. No. 148 (Q.B.) 43-60; R. v. Lavoie, 2017 ABQB 66, [2017] A.J. No. 85 (Q.B.) 37-39; R. v. Ashraf, 2016 ONCJ 584, [2016] O.J. No. 5079 (O.C.J.) 73-76; R. v. Brown, [2018] N.S.J. No. 276 (C.A.) 72-75; R. v. Gambilla (appeal by Mamouni), [2017) A.J. No. 1104 (C.A.) 185-93.

[95] Counsel for Mr. Zilney relies on R. v. Formusa, 2017 ONCJ 236; R. v. Tetreault, [2017] A.J. No. 534 (Q.B.); R. v. Lovett, [2017] A.J. No. 1237 (Q.B.) and R. v. Jurkus, 2018 ONCA 489 in submitting that the periods of reserve judgment ought to be counted in the net delay. The thrust of the argument for Mr. Zilney is that the Jordan time periods run to the “the end of the trial” which is when a verdict is rendered, and that trial judges must prioritize judgments when the Jordan ceiling is approaching over other reserve judgments and whatever else might be on the judge’s schedule even if it means giving a bottom line verdict with reasons to follow.

[96] Counsel for Mr. Zilney noted that in addition to Kehler, cases holding that periods of reserve judgment ought not to be counted in the net delay were Ashraf; Lavoie; R. v. Basha, 2017 ONSC 5897 and Gambilla.

[97] The day this appeal was argued, counsel additionally submitted some updated information as follows: for Gambilla leave to appeal to the SCC was dismissed September 27, 2018 [2018] S.C.C.A. No. 176; for Jurkus leave to appeal to the SCC was dismissed December 6, 2018 [2018] S.C.C.A. No. 325; and Tetreault was upheld on appeal 2018 ABCA 397, the Court of Appeal not addressing the treatment of reserve time. Two additional cases, R. v. King 2018 NLCA 66 and Ontario (Labour) v. Nugent 2018 ONCA 1014, granting leave to appeal, speak to, without deciding, the issue of reserve time.

[98] Lavoie held that delays occasioned by judges reserving decisions are discrete events which constitute exceptional circumstances. The decision by presiding judges to reserve decisions are both unforeseen and unavoidable. The line of cases holding that that periods of reserve judgment ought not to be counted in the net delay, generally speaking, adopt this approach.

[99] I do not find that the line of cases relied on by counsel for Mr. Zilney in support of his position that the periods of reserve judgment ought to be counted in the net delay are persuasive. They largely leave the issue unresolved.

[100] Since this appeal was argued January 16, 2019, the Manitoba Court of Appeal decided the appeal in R. v. K.G.K. (Kehler) at 2019 MBCA 9, [2019] M.J. No. 24 and the majority found that the Jordan ceilings do not apply to the time it takes to make a judicial decision. The majority also held that the standard of unreasonableness for the time it takes to make a judicial decision is that set out in R. v. Rahey, [1987] 1 S.C.R. 588. That is, whether the delay is "'shocking, inordinate and unconscionable'" (Rahey at paragraph 43).

[101] I agree with the reasoning taken by the trial judge and the majority of the Manitoba Court of Appeal in R. v. K.G.K. and the decision of the Alberta Court of Appeal in Gambilla. While it perhaps would have been more helpful for the Supreme Court of Canada to hear and decide this issue explicitly, it is of some significance that leave to appeal Gambilla was not granted. As noted by the trial judge in Lavoie, the decision by presiding judges to reserve decisions are both unforeseen and unavoidable and the Crown has no ability to control whether a case is adjourned and, if so, for how long. That decision, which is a function of judicial independence, rests solely with the presiding judge.

[102] For these reasons, in accordance with Jordan at paragraph 69, I am satisfied that the time taken by the trial judge in this case to render a verdict falls within the exceptional circumstances definition. Time required for a judge to render a verdict lies outside the Crown's control in the sense that (1) it is reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

[103] I find that the time taken in this case to render a verdict, from February 15, 2016 to May 1, 2016, does not make the delay unreasonable. The time taken to render a verdict in this case does not come close to being "'shocking, inordinate and unconscionable'" as contemplated in Rahey.

[104] For these reasons I find that the delay to be considered was, as the trial judge found, 18 months and 13 days, and after deducting the defence delay, the total was 17 months and 5 days. Mr. Zilney has failed to meet his burden of showing that this delay, below the Jordan ceiling, amounts to unreasonable delay.

[105] For these reasons it is unnecessary for me to consider further whether the time taken by Baldwin J. to render a verdict in the case comprising the similar fact evidence should also be deducted from the total.

[106] I find no error in the trial judge’s decision on the issue of unreasonable delay.

Sentence Appeal

[107] Because I have determined that Mr. Zilney is entitled to a new trial on these charges on the basis of reasonable apprehension of bias, it is unnecessary for me to consider the sentence appeal.

[108] The appeal is granted in part. It is ordered that Mr. Zilney receive a new trial on his convictions for Indecent Act and Criminal Harassment alleged to have been committed between July 31, 2014 and August 7, 2014.

MILLER J. Released: February 28, 2019 R. v. Zilney, 2019 ONSC 1375 COURT FILE NO.: 134/17 DATE: 20190228 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT HER MAJESTY THE QUEEN – and – GRANT ZILNEY REASONS FOR JUDGMENT MILLER J. Released: February 28, 2019