COURT FILE NO.: CR-22-50000004-00AP

DATE: 20220727

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOSEPH JOHN

N. Bailey, for the Crown

M. Tubie, for Mr. John

HEARD: 5 July 2022

S.A.Q. AKHTAR J.

RULING ON APPLICATION FOR SUMMARY DISMISSAL

Introduction

Introduction

1On 18 January 2021, the respondent, Joseph John, was found guilty of operating a motor vehicle whilst impaired after a lengthy trial before Robertson J. of the Ontario Court of Justice.

2On 13 January 2022, almost one year after the conviction, Robertson J. imposed a sentence of six months to be served in the community, along with a period of probation for 18 months and a three-year driving prohibition.

3Mr. John filed a notice of appeal against both conviction and sentence. However, he abandoned all of his grounds leaving only one which related to sentence.

4The Crown applied, pursuant to s. 685 of the Criminal Code, for a summary dismissal of this remaining ground of appeal arguing that it is frivolous and has no reasonable prospect of success.

5At the end of the hearing to determine whether the appeal should proceed, I granted the application with reasons to follow which I now produce.

Factual Background

Factual Background

6On 22 November 2017 at around 11:30 p.m., Mr. John was driving his BMW Sport Utility Vehicle eastbound along Finch Avenue West, east of Kipling Avenue. He was seen to drift across several lanes and struck the eastbound curb. He continued to drive across the westbound lanes, and finally ended up in a head on collision with the victim’s car, which was travelling westbound.

7Mr. John was ejected from his cabin as his car rolled out. The victim, a single mother of five children was hospitalised for three days and sustained life altering injuries which continue to require physical and psychological treatment. The effects of the collision reverberate to this day as she continues to need assistance in her daily life habits.

8The trial was spread out over many dates. The information, included as part of the Crown’s Application Record discloses the following dates were set as part of the trial process:

• September 16, 2019;

• September 17, 2019;

• November 13, 2019;

• March 19, 2019;

• June 2, 2020;

• August 11, 2020;

• January 7, 2021; and

• January 11, 2021 - the date on which the trial judgment was rendered

9At its conclusion, Robertson J. found beyond a reasonable doubt that Mr. John had been driving his vehicle while impaired by alcohol.

10After being convicted, Mr. John’s matter went over a similar number of times for sentencing purposes. The dates were as follows:

• March 25, 2021;

• March 29, 2021;

• May 11, 2021;

• June 10, 2021;

• June 21, 2021;

• August 12, 2021;

• September 15, 2021

• November 18, 2021; and

• January 13, 2022 - the final date of sentencing

The Sentencing Hearing Date

The Sentencing Hearing Date

11By 13 January 2022 the sentencing process was almost complete. Both sides had made submissions and Robertson J. had drawn up the sentence to be imposed. All that needed to be done was to pass sentence and finish matters. However, when the matter was due to be addressed, Mr. John was not present.

12His trial counsel (not Mr. Tubie) informed the court that Mr. John was in hospital having contracted COVID-19 five days earlier. Counsel confirmed that Mr. John had emailed him a positive test result dated 11 January 2022 showing that there had been a specimen taken on 8 January 2022.

13Mr. John appeared by audio to inform the court that he was in the Intensive Care Unit at Humber River Hospital, having been admitted there on 9 January 2022.

14When questioned by the court about his potential release date, Mr. John told Robertson J. that when he was released, he intended to go to Africa for five months to get medicine to treat his blood pressure.

15Initially, Robertson J. indicated that he might be prepared to adjourn the matter for a short period of time to permit Mr. John to leave hospital. At this stage, counsel for Mr. John interjected. He suggested that if the court imposed a custodial sentence Mr. John’s health would be in danger because of the ongoing COVID-19 pandemic. Accordingly, his counsel informed Robertson J. that if the matter was to come back two weeks later, he would ask for a further adjournment to avoid Mr. John being placed into custody whilst “the jails are in lockdown because of the pandemic that is taking place in the custodial facilities as well”.

16Robertson J. took a brief recess and then returned to tell Mr. John that he would be delivering his judgment that morning. He said:

17Although I was inclined to grant a further adjournment in light of the fact that you are in the hospital, this matter has been going on for an awfully long period of time, and your health conditions continue to pose a challenge to the court in order to find the most appropriate time in which to deliver judgment I was, even today, inclined not to proceed to sentencing in light of the fact that you are in hospital but, given that you've advised me that you would be well enough to travel to Africa and be there for five months, I think that I am, in all of the circumstances, I am prepared to deliver judgment today.

18Following this declaration, the judge proceeded to read out his sentencing judgment.

The Appeal

The Appeal

19On 19 January 2022, Mr. John filed a notice of appeal setting out grounds that the six-month conditional sentence was harsh and excessive and that the judge had failed to follow the appropriate principles when passing sentence.

20On 9 February 2022, Mr. John filed a supplementary notice of appeal adding grounds of appeal that sought to set aside his conviction, including a breach of s. 11(b) Charter rights; the judge making unreasonable findings of fact; and the judge erring by sentencing him remotely whilst he was in hospital.

21On 5 May 2022, Mr. John filed a further factum which abandoned all grounds of appeal except the claim that the sentencing judge wrongly sentenced him whilst he was in hospital rather than granting him an adjournment of proceedings so that he could attend court in person.

22It is this appeal that remains before the court, and which is the subject of contention. The Crown seeks summary dismissal, arguing that on its face it is meritless.

23Section 685 of the Criminal Code provides:

685 (1) Where it appears to the registrar that a notice of appeal, which purports to be on a ground of appeal that involves a question of law alone, does not show a substantial ground of appeal, the registrar may refer the appeal to the court of appeal for summary determination, and, where an appeal is referred under this section, the court of appeal may, if it considers that the appeal is frivolous or vexatious and can be determined without being adjourned for a full hearing, dismiss the appeal summarily, without calling on any person to attend the hearing or to appear for the respondent on the hearing.

24This provision is used sparingly. In R. v. Duhamel, 2006 QCCA 1081, 214 C.C.C. (3d) 235, at para. 26, the court observed that it should be used only if, on the face of the appeal alone, the appeal is so meritless that it can be dismissed without consideration of the appeal record. In R. v. Haug, 2011 ABCA 153, 502 A.R. 392, at para. 8, the court applied s. 685 to strike out an appeal on the basis that it “was bound to fail”.

Should the Appeal Be Dismissed?

25In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, the Court made clear that appellate interference in relation to a sentence is subject to strict limitations:

This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

26Accordingly, the only avenue available for intervention is if an appellate court finds an error of law in the sentence or that the sentence is demonstrably unfit.

27Of particular note in this case is the fact that, at the sentencing hearing, trial counsel for Mr. John asked for a conditional sentence of four to six months. Mr. John can hardly complain now about that sentence being “harsh” or “excessive”.

28However, the reality is that Mr. John’s appeal lies against one aspect of the sentence he received, namely the three-year driving prohibition imposed by Robertson J. He seeks a reduction in that period of time.

29It is clear from the transcripts produced at this hearing that Robertson J. was initially minded to grant a short adjournment to permit Mr. John to attend court in person. What appears to have changed the judge’s mind is Mr. John’s revelation of his travel plans to Africa. Robertson J. determined that if Mr. John was able to travel to Africa for five months, he was well enough to receive sentence.

30Counsel for Mr. John, Mr. Tubie, argues the judge erred by sentencing him whilst he was in the ICU at Humber River Hospital. Relying on s. 650 of the Criminal Code, Mr. Tubie submits that Mr. John was entitled to be physically present at the sentencing hearing.

31I am not sure that this is the case as the practice since the pandemic has permitted persons charged with criminal offences to appear remotely during their trials.

32Even if that were the case, it is hard to understand the prejudice. Sentencing submissions had already been made and there is no argument of any breach of protocol or procedure during that part of the process. All that remained was for Robertson J. to read out the sentence. Mr. John was “present”, albeit remotely, to hear the reasons for sentence.

33The real issue, however, is what impact did Mr. John’s remote presence have on the sentence?

34Mr. Tubie provides no authority to suggest that the sentence itself was not within the range of sentences imposed for similar factual circumstances.

35Instead, he submits that Mr. John’s “indignity” at being sentenced whilst suffering “life threatening maladies” in the ICU demands the disqualification period be reduced. Mr. John says that sentencing an offender in these circumstances is “patently unlawful” irrespective of whether the sentence may otherwise be in the permissible sentencing range and that, in doing so, the sentencing judge lost jurisdiction of the matter.

36He further argues that to allow a sentencing court to impose sentence in this way creates a negative precedent that should not be followed.

37In dealing with the Crown’s assertion that Mr. John’s health could not have been as serious as he was making out at the time because he would have been healthy enough to fly to Africa, Mr. Tubie argues that it is clear that if Mr. John was in ICU he would have been under medication that affected his thought processes causing him to utter statements that might not have been accurate.

38I note that Mr. John has provided no evidence that he was medicated at the time of the sentencing hearing. Nor is there any evidence before this court that he was in the ICU or had even been admitted to hospital.

39Nor has Mr. Tubie provided any authorities that stand for the legal propositions that he advances and which are set out in previous paragraphs.

40This was an extremely protracted sentencing hearing that was completed nearly one year after the conviction. Robertson J. was alive to that fact and it was clearly within his discretion to impose sentence in these circumstances. Mr. John was present by phone and was represented in court by experienced counsel whose position was largely accepted by the court.

41Nor can it be said there was legal error in imposing the sentence or that the sentence was demonstrably unfit. Indeed, one might argue on these facts that Mr. John received a sentence on the lowest end of the sentencing spectrum considering the facts of the offence and its consequences. I repeat: the sentence was one that was largely requested by Mr. John’s trial counsel when making sentencing submissions.

42Mr. John’s real complaint is that Robertson J. did not accede to his request for an adjournment, to delay the imposition of sentence for potentially a further five-month period. That was a decision that was within Robertson J.’s discretion.

43There is nothing to suggest that, by exercising his discretion in this manner, he either lost jurisdiction or brought the administration of justice into disrepute. In fact, a reasonable observer might conclude that a further delay of five months (or more) in proceedings that had taken 4 years to complete was unreasonable.

44Although I have referred to the existing s. 685 jurisprudence, I would also add that the culture change directed by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, should also apply to appeals. The following comment, made by the court in Cody, at para. 38, is also relevant to the appellate process:

In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 1992 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.

45For the reasons set out above, I find that there is no merit to the appeal and, in the words of the court in Haug, it is “bound to fail”.

46For these reasons, the Crown’s application is granted, and the appeal is dismissed.

S.A.Q. Akhtar J.