ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
B. Moodie, for the Crown Attorney
Appellant
- and -
DANIEL NEAD
A. Little and F. Fedorsen, for the Respondent
Respondent
HEARD: July 30, 2021
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice P.H.M. Agro)
1The Crown appeals the ruling of a stay of proceedings rendered by Agro J. of the Ontario Court of Justice at Hamilton, Ontario on October 1, 2020.
2Specifically, this appeal is brought by the appellant pursuant to s. 813(b)(i) of the Criminal Code, R.S.C. 1985, c. C-46 after the respondent’s charges were judicially stayed pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“Charter”).
3For the purposes of this appeal, the respondent concedes that the learned trial judge committed an overriding and palpable error and misapprehended the evidence. Hence, I need only provide brief reasons.
Legal Principles:
4Pursuant to s. 813(b)(i) of the Criminal Code, a summary conviction court has the jurisdiction to reverse a finding of fact made by a provincial court judge. This also includes a stay of proceedings or a dismissal of an information
5Under this section, an appeal by the Crown Attorney may be based upon grounds of fact, mixed fact and law or law alone: R. v. Labadie (2011), 2011 ONCA 227, 275 C.C.C. (3d) 75 (Ont. C.A.). It is settled law that when considering an error in the trial judge’s overall assessment of Charter issues, deference must be afforded. Appellate courts may only interfere with such judicial findings if they can clearly articulate the basis upon the ruling in the lower court is unreasonable or not supported by the evidence.
Application of the Legal Principles to this Case:
6This appeal essentially turns on an analysis of the trial judge's reasons and findings that the respondent’s s. 11(b) rights were violated pursuant to the guidelines and direction established by the Supreme Court in the seminal case of R. v. Jordan, 2016 SCC 27.
7The underlying allegations in this case are straight forward and routine. The trial time estimate of one and a half days was agreed to by all parties and was uncontroversial.
8The respondent’s charges were stayed on the day of his third trial date after he had successfully secured adjournments of his two originally scheduled trials. The former adjournment came with an express waiver of 11(b) delay, and the later was contested by the Crown after previous trial counsel successfully applied to get off the record days before.
9In adjourning the second trial the then motions judge aptly opined that:
Obviously, this is an adjournment brought on by a request from the defendant, and, in my view, the ensuing delay will likely fall at his feet should the issue of delay ever become a live one in this case.
10Nonetheless, it took another eight months for the respondent to set the matter down for his third trial wherein his charges were ultimately stayed.
11The appellant argues, and I agree, that the application judge committed legal and factual errors that rendered her decision plainly wrong. All purported errors deal with the allotment of time from the adjournment of the second trial date onward.
12I also agree with the appellant that the application judge failed to appreciate the context of the contested second adjournment, which was requested solely by the respondent at a time the other parties were ready to proceed. Indeed, after the respondent changed counsel days before his second trial, he told the court he was not prepared to proceed on his own or with another lawyer and requested additional time. In contrast, the Crown and court were perpetually ready to proceed when original trial dates where set.
13It is clear from the record that this was undoubtedly defence delay as outlined in Jordan. In failing to find as much, the trial judge respectfully fell into reversable legal error: Jordan at paras. 63 - 64, 120, R. v. Cody, 2017 SCC 31, at paras. 32 - 33, 140, R. v. Gandhi, 2016 ONSC 5612, at paras. 42-43.
14Moreover, the written trial verification form (“TVF”) filed routinely when setting dates for trial in the Ontario Court of Justice -including this one- facially demonstrated a waiver of s. 11(b). The application judge failed to appreciate this relevant piece of disputed evidence and as a result failed to give proper effect to the evidence before her and fell into further error, (at least as it applied at the relevant time). 1
15I note that in R. v. Harper, 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2, at p. 14, the Supreme Court held “[w]here the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede”. This problem was before this Court in MacDonald v. The Queen, 1976 CanLII 140 (SCC), [1977] 2 S.C.R. 665, when Laskin C.J. stated, at p. 673:
It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict. Where some reasons are given and there is an omission to deal with a relevant issue or to indicate an awareness of evidence that could affect the verdict, it may be easier for an appellate Court or for this Court to conclude that reversible error was committed: see R. v. Bush, 1938 CanLII 209 (BC CA), [1939] 1 W.W.R. 42, at p. 44; Ungaro v. R., 1950 CanLII 23 (SCC), [1950] S.C.R. 430; Horsburgh v. R., 1967 CanLII 18 (SCC), [1967] S.C.R. 746; Kolnberger v. R., 1968 CanLII 564 (SCC), [1969] S.C.R. 213.
16Finally, the trial judge’s comments at para. 47 of her judgment with respect to the Crown and courts’ efforts to prioritize the case, “[e]ven once that disclosure was provided, the Crown paid nothing more than lip service to 11(b) concerns and the court was complacent in that”, were unfortunate.
17I concur with the appellant’s submissions on this point and the respondent does not dispute the assertions made by Mr. Moodie. With respect, the trial judge misapprehended the evidence. The record clearly demonstrates that the Crown and court moved expeditiously, by providing earlier trial dates, making repeated efforts to cajole the respondent to have his matter heard and setting the third trial date down sooner.
18Overall, given the positions of the parties with the respondent’s consent to this appeal, it is unnecessary to deal with the balance of the appellant’s arguments.
Conclusion:
19The appeal is allowed and the matter shall return to the Ontario Court of Justice for a new trial before a different jurist.
A.J. Goodman, J.
Released: August 3, 2021
COURT FILE NO.: CR 20-165 AP
DATE: 2021-08-03
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
DANIEL NEAD
Respondent
REASONS FOR JUDGMENT
(On Appeal from the Honourable
Justice P.H.M. Agro)
Released: August 3, 2021