Publication Ban Warning

WARNING The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

COURT FILE NO.: CR-2023-06-AP DATE: 20240126

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE KING Appellant – and – F. C. Respondent

Counsel: Raphael J. Feldstein, for the Appellant/Crown Jon Doody, for the Respondent

HEARD: January 5, 2024

Reasons for Decision re Adjournment Request, Dismissal of Appeal and Costs Holowka J.

Overview

[1] This summary conviction appeal hearing was scheduled for January 5, 2024. It did not proceed as the Crown had failed to perfect the appeal by failing to serve and file an appeal book and by failing to serve and file a factum. The appeal could not be heard.

[2] The Respondent opposes the Crown's request to adjourn the appeal hearing. Furthermore, the Respondent requests that the appeal be dismissed and an order for costs be made against the Crown.

[3] For the following reasons, the Appellant/Crown's request for adjournment is denied, and the appeal is dismissed. I decline to order costs against the Crown.

Procedural History

[4] The Respondent was convicted of a single count of sexual assault, contrary to section 271 of the Criminal Code, on March 3, 2023. On July 11, 2023, the Respondent was sentenced to serve a conditional sentence of 20 months, followed by 18 months of probation.

[5] The Crown filed a Notice of Appeal on August 9, 2023. The Crown sought to appeal the sentence imposed by the Trial Judge.

[6] A date for the hearing of the summary conviction appeal was selected on November 21, 2023, although the appeal had not yet been perfected. The date for the hearing of the appeal was set on the record at the assignment court on November 24, 2023.

[7] The hearing date for the appeal was set for January 5, 2024. The Court imposed a December 15, 2023, deadline for the Crown to perfect its appeal. The Respondent’s material was to be filed by January 2, 2024.

[8] The Crown did not perfect its appeal by the December date. It failed to file a factum, an appeal book, or a book of authorities. Late on the date that the Crown’s materials were due, the Crown wrote to the Trial Coordinator copying counsel for the Respondent. Crown counsel stated as follows:

“Madame Trial Coordinator:

Please pass along this message to His Honour, Mr. Justice Holowka.

Your Honour:

Since our last appearance before you, the Crown has been diligent to prepare this appeal and have all materials prepared and filed in this matter as required.

Unfortunately, I was not trial crown on this file and need to review everything to bring myself up-to-speed in this file. At my request right after our last appearance, I asked my office staff to obtain copies of the trial file from court administration such as the Court information and all exhibits filed at trial. Despite repeated attempts by the staff over the last few weeks, there was no response and no documents were forwarded.

I put in a call yesterday to the supervisor of the court office to raise this issue and determine if I could get copies as requested. She was very forthcoming and said she would address it immediately. I can tell the Court that this morning I did receive electronically a copy of the Court Information and 11 exhibits by email. I have worked all day but need more time to finalize my materials. I truly apologize to the Court for this delay and I assure you I will continue to work through the weekend to file these materials as soon as possible so that we keep this file on track for the appeal on January 5, 2024.

Thank you very much for your attention to this matter.”

[9] On December 18, 2023, counsel for the Respondent wrote to the Trial Coordinator, copying the Crown:

“Good Afternoon Madame Trial Coordinator:

Can you please pass along the message to His Honour,

Your Honour,

Following the Crown’s email on Friday afternoon, the Crown and I spoke. I advised him that I was off on holidays as of this Wednesday, the 20th, and would not be back in the office until January 2nd. I advised him that I had arranged my schedule to be able to respond by the Defence’s due date of January 2nd, by setting aside time on Friday, today and tomorrow to work on my response. The Crown did not file on Thursday in according to the deadline set by the Court.

When we spoke on Friday, I advised the Crown that if he was able to get me his factum, or even a draft of it, by this morning, I would make my best effort to be able to still respond by the deadline of January 2nd. I still have not received the Crown’s factum. As such, because of the Crown’s failure to meet their filing deadlines, I will not be able to meet my deadline of January 2nd. I am asking that the appeal, which is currently scheduled for January 5th, 2024, be adjourned. If Your Honour would like to address this in Court before that date, I can have someone from my office attend. Otherwise, I can bring the application formally on the appeal date of January 5th, 2024.”

[10] A few minutes later, the Crown wrote to the Respondent stating:

“Hey Jon,

Still working on it right now. I understand and want you to completely enjoy your vacation.

Crown deadline was not Thursday but Friday last week though just so you know and can correct it as needed.

I’ll flip you a copy when ready.

Raphael”

[11] Counsel for the Respondent wrote to the Trial Coordinator to clarify the deadline as noted above.

[12] The following direction of the Court was forwarded to the parties on the morning of December 19, 2024:

“Please read below the directions received by His Honour, Justice Holowka:

I understand the situation and the inability of counsel for the Respondent to meet the filing deadline of January 2, 2024. I would prefer to proceed with the appeal on January 5, 2024, if the Respondent’s materials can be provided to the Court by end of business on January 4, 2024, so that I may have an opportunity to review them before oral argument.

If this proves to be impossible, we will address the adjournment request on the morning of January 5, 2024.”

[13] On January 3, 2024, counsel for the Respondent wrote to Crown counsel asking about the factum. Crown counsel responded that they were still working on the factum and hoped to have it to them first thing in the morning. Counsel for the Crown asked whether they would have time to prepare responding material. Counsel for the Respondent did not reply to this inquiry.

[14] On January 4, 2024, the day before the appeal hearing, the Appellant/Crown filed an incomplete Appeal Book. The Appeal Book was missing the defence sentencing materials. The Crown did not perfect the appeal before the appeal hearing date. Significantly, the Crown did not serve and file the Appellant/Crown’s factum.

[15] At 4:24 pm on the eve of the date set for the hearing of the appeal, Crown counsel wrote to the Trial Coordinator, copying counsel for the Respondent:

“Madame Trial Coordinator Pilon:

I am still cranking away at completing my factum and looking at the hour and the fact that my colleague will not have any opportunity to really review my factum – could we canvass with the Court on whether Defence can appear remotely at tomorrow’s hearing? I am in the office in l’Orignal tomorrow and I will be there anyways but it would not be fair to my colleague to come down from Ottawa for this one matter.

Please canvass and let us know.”

[16] On January 5, 2024, at the time set for the hearing of the appeal, the Appellant/Crown made an oral request to adjourn the appeal. No notice was provided to either the Court or the Respondent prior to this oral request that this was the Crown’s intention. No material was filed in support of the adjournment request.

[17] The Respondent strenuously opposed the adjournment request. The Appellant/Crown’s request adjournment request did not specify a duration.

[18] I invited the Respondent’s counsel to provide written submissions regarding the adjournment request and the requested dismissal if he chose to do so. Both the Appellant/Crown and Respondent’s counsel filed material on this question.

[19] The materials filed by the Appellant/Crown’s counsel do not clarify what efforts were made to comply with the deadlines set by the Court or why the Respondent’s counsel was not notified that the Appellant/Crown’s materials were not going to be ready by the hearing date or in time for the Respondent’s counsel to respond.

[20] The Crown has yet to file a factum or book of authorities as of January 24, 2024. On January 5, 2024, hearing date, the Appellant/Crown stated that they would continue to work towards perfecting the appeal.

Analysis

[21] The decision to grant or deny an adjournment involves the exercise of judicial discretion.

[22] Almost all the available case law on adjournments relates to trial matters. I have considered the principles that may be derived from this body of jurisprudence and have applied them to the present context of an adjournment of a summary conviction appeal. I have considered the factors set out in R. v. Darville (1956), 116 C.C.C. 113 (S.C.C.).

[23] The party seeking an adjournment bears the onus of establishing that an adjournment is warranted in the circumstances.

[24] Decisions on applications for an adjournment involved the exercise of judicial discretion. They require consideration of all the circumstances to determine what is in the best interests of the administration of justice. The exercise of discretion must be principled. It must be firmly grounded in the circumstances disclosed in the case at hand. The interests of justice are a joint venture, not a sole proprietorship. They are not for the sole use of one party to the exclusion of the other: R. v. Ke, 2021 ONCA 19 at para. 57.

[25] The Respondent submits that the Appellant/Crown has not complied with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) in seeking the present adjournment.

[26] The Respondent notes that the Appellant/Crown failed to comply with any of the Rules regarding his Application to adjourn the appeal:

1. The Crown failed to give notice to the Respondent, or the Court, of his intention to seek an adjournment of the Appeal until January 5, 2024, at the time when the Appeal was set to be heard.
2. The Crown failed to serve any application or supporting evidence on the Respondent and failed to file any application or supporting evidence with the Court.

[27] In response, the Appellant/Crown notes that the Court has a discretion pursuant to Rule 2.01 of the Criminal Proceeding Rules to dispense with compliance in the interests of justice.

[28] The Respondent argues that the principles articulated by the Supreme Court of Canada regarding complacency are apposite, although section 11(b) Charter rights to be tried within a reasonable time does not apply to appeals.

[29] I agree.

[30] The Court stated:

“As we have observed, a culture of complacency towards delay has emerged in the criminal justice system … Unnecessary procedures and adjournments , inefficient practices , and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay “causes great harm to public confidence in the justice system ” (LeSage and Code, at p. 16). It “rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system ” (Cowper, at p. 48).

The Morin framework does not address this culture of complacency. Delay is condemned or rationalized at the back end. As a result, participants in the justice system — police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament — are not encouraged to take preventative measures to address inefficient practices and resourcing problems . Some courts, with the cooperation of counsel, have undertaken commendable efforts to change courtroom culture, maximize efficiency, and minimize delay, thereby showing that it is possible to do better. Some legislative changes and government initiatives have also been taken. In many cases, however, much remains to be done.

Complexity is sometimes unavoidable in order to achieve fairness or ensure that the state lives up to its constitutional obligations. But the quality of justice does not always increase proportionally to the length and complexity of a trial . Unnecessary procedural steps and inefficient advocacy have the opposite effect, weighing down the entire system. A criminal proceeding does not take place in a vacuum. Each procedural step or motion that is improperly taken, or takes longer than it should, along with each charge that should not have been laid or pursued, deprives other worthy litigants of timely access to the courts .”

R. v. Jordan, 2016 SCC 27 at para. 40-41, 43. [Emphasis Added]

[31] In deciding whether to grant the adjournment I have considered the following:

1. The steps taken or not taken by the Appellant/Crown to perfect the appeal;
2. The failure to take appropriate steps to adjourn the appeal hearing when it became apparent that the Appellant/Crown would not be able to perfect the appeal;
3. The absence of communication by the Appellant/Crown with the Respondent regarding the inability to perfect the appeal or preserve the appeal hearing date;
4. The absence of any material filed with the Court in support of the adjournment request on January 5, 2024;
5. The expectation that when an appeal is set for a hearing, the matter will proceed;
6. The need to reduce court delays and waste of court resources;
7. The need to ensure adequate representation of individuals facing criminal sanctions while on appeal;
8. The lack of any sense of urgency or diligence in perfecting the appeal; and
9. The nature of the appeal and the nature of the offences under consideration.

[32] I have considered these factors in exercising my discretion whether to grant an adjournment of the appeal as requested by the Appellant/Crown. In the totality of the circumstances, I have determined that the adjournment should not be granted. I am aware that my refusal to grant the adjournment means that the merits of the summary conviction appeal against the sentence will not be considered.

[33] As a result, the appeal is dismissed.

[34] I have considered the Respondent’s request for costs on a full indemnity basis. The Appellant/Crown’s materials do not address this issue.

[35] Given my decision to refuse the adjournment and to dismiss the appeal, I exercise my discretion and decline to order costs against the Crown. I have considered R. v. Tiffin, 2008 ONCA 306 in this regard. I do not view the circumstances as falling into the categories outlined in that case where costs are justified.

The Honourable Justice Brian Holowka Released: January 26, 2024

R. v. R. C., 2024 ONSC 550 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE KING – and – F. C. REASONS FOR DECISION RE ADJOURNMENT REQUEST. DISMISSAL OF APPEAL AND COST The Honourable Justice Brian Holowka Released: January 26, 2024