WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486(1), (1.1), (2), or (3) of the
Criminal
    Code
shall continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or own his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1)
The
application may be made, during the proceedings,
    to the presiding judge or justice or, before the proceedings begin, to the
    judge or the justice who will preside at the proceedings or, if that judge or
    justice has not yet been determined, to any judge or justice having
    jurisdiction in the judicial district where the proceedings will take place.

(2)     In determining whether the order is in the
    interest of the proper administration of judge, the judge or justice shall
    consider

(a)
society's
interest in encouraging the reporting of
    offences and the participation of victims and witnesses in the criminal justice
    process;

(b)
the
safeguarding of the interests of witnesses under
    the age of 18 years in all proceedings;

(c)
the
ability of the witness to give a full and candid
    account of the acts complained of if the order were not made;

(d)
whether
the witness needs the order for their security
    or to protect them from intimidation or retaliation;

(e)
the
protection of justice system participants who are
    involved in the proceedings;

(f)
whether
effective alternatives to the making of the
    proposed order are available in the circumstances;

(g)
the
salutary and deleterious effects of the proposed
    order; and

(h)
any
other factor that the judge or justice considers
    relevant.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
    accused applies for an order under subsection (1), the judge or justice shall,
    if no such order is made, state, by reference to the circumstances of the case,
    the reason for not making an order.

(4) No adverse inference may be drawn
    from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S.,
    1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16,
    s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;
    2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1,
    s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jurkus, 2018 ONCA 489

DATE: 20180528

DOCKET: C63479

Sharpe, Pepall and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Stephen
    Jurkus

Respondent

and

Leslie Lonsbary

Respondent

Michael Fawcett, for the appellant

Patrick Ducharme, for the respondent, Stephen Jurkus

Jill Presser and Jeff Marshman, for the respondent,
    Leslie Lonsbary

Heard: February 21, 2018

On appeal from the decision of Justice A.K. Mitchell of
    the Superior Court of Justice, dated February 13, 2017.

Fairburn J.A.:

A.

OVERVIEW

[1]

In October 2013, Mr. Lonsbary was a correctional officer at the Elgin-Middlesex
    Detention Centre. Mr. Jurkus was an operational manager. They were on duty when
    Adam Kargus cellmate beat him to death. The beating is said to have gone on for
    about an hour and was so loud that an inmate a floor below could hear the
    excessive banging. Mr. Kargus is said to have repeatedly screamed for help. His
    body was discovered the following morning.

[2]

On March 5, 2014, the respondents and another correctional officer were
    charged with failing to provide the necessaries of life to the deceased. The charges
    against the third officer were withdrawn at the outset of the preliminary
    inquiry. The respondents were to be tried together. Their trial was set to
    commence on May 8, 2017, but the proceedings were stayed for unreasonable
    delay.

[3]

The appellant claims that the application judge erred in her s. 11(b)
Charter
analysis. I agree. When these errors are properly accounted for, there was
    no unreasonable delay. The trial must proceed.

B.

THE APPLICABLE LEGAL FRAMEWORK

[4]

To provide context for the reasons that follow, I start with a general
    review of the relevant legal framework within which s. 11(b)
Charter
applications
    are considered today. This is the approach ushered in under
R. v. Jordan,
2016
    SCC 27, [2016] 1 S.C.R. 631, a decision released after this case had already
    been in the system for 28 months.

[5]

A presumptive ceiling of 30 months is set for cases proceeding in
    superior courts. In determining whether the 30-month ceiling is exceeded,
    defence delay must first be subtracted from the total delay, resulting in the
    net delay:
R. v. Coulter,
2016 ONCA 704, 133 O.R. (3d), at para. 35;
R. v. Gopie,
2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 113.

[6]

There are two types of defence delay: delay waived by the defence and
    delay caused solely by the conduct of the defence:
Jordan,
at paras.
    61, 63;
R. v. Cody,
2017 SCC 31, [2017] 1 S.C.R. 659, at para. 26.
    There is no suggestion of waiver in this case. As for delay caused solely by
    the defence, among other things, this type of delay can arise where the court
    and the Crown are ready to proceed, but the defence is not:
Jordan,
at
    para. 64.

[7]

Where the net delay rests above the presumptive ceiling, the Crown bears
    the onus of establishing reasonableness. This onus can be met where exceptional
    circumstances are shown to exist. Exceptional circumstances have two components:
    (1) they are reasonably unforeseen
or
reasonably unavoidable,
and
(2) Crown counsel cannot reasonably remedy the delays emanating from those
    circumstances once they arise (emphasis in original):
Jordan,
at
    para. 69. See also:
Gopie,
at para. 115;
Cody,
at para. 58.

[8]

In general, there are two categories of exceptional circumstances
    discrete events and particularly complex cases:
Jordan
, at para. 71.
    Where discrete events cause delay, that period of time must be subtracted from
    the net delay. If the Crown or system could have reasonably mitigated the delay
    arising from a discrete event, it may result in only a partial amount of the
    time being subtracted from the net delay. This produces what is referred to as
    the resulting delay:
Gopie,
at para. 117. Where the resulting delay
    exceeds the 30-month ceiling, the court will look to the complexities of the
    case to determine whether the passage of time is nonetheless reasonable:
Jordan,
at paras. 75-80;
Gopie,
at para. 117.

[9]

Finally, for cases where delay exceeding the ceiling is not explained by
    the complexity of the matter, a transitional exceptional circumstance may apply
    if the charges were laid prior to
Jordan
having been released:
Jordan,
at para. 96.

C.

THE APPLICATION JUDGES DECISION

[10]

The
    application judge concluded that the total delay was 39.3 months. Two periods
    of defence delay were then subtracted from the total delay, leaving the net
    delay for Jurkus at 35.8 months and for Lonsbary at 36.6 months.

[11]

The
    application judge went on to consider exceptional circumstances. She concluded
    that there were no discrete events that would further decrease the net delay.
    In particular, she rejected the suggestion that the need to add a fifth day to
    complete the preliminary inquiry was a discrete event, such that the ensuing
    delay was an exceptional circumstance. Moreover, the application judge found
    that there was no complexity inherent in the proceedings, such that any delay
    above the ceiling could be justified. Accordingly, the Crown was found to have failed
    in its attempt to rebut the presumption of unreasonable delay.

[12]

The
    application judge went on to consider the transitional exceptional
    circumstance. She conducted a cursory analysis under
R. v. Morin,
[1992]
    1 S.C.R. 771, and concluded that the time that the case would take to the
    conclusion of the trial was not reasonable under the pre-
Jordan
regime.
    A stay of proceedings was entered.

D.

ANALYSIS

(1)

Overview

[13]

As
    will be explained in these reasons, I conclude that the application judge erred
    by: (a) miscalculating the total delay; (b) failing to recognize two periods of
    defence delay that, properly approached, decrease the net delay; (c) failing to
    take into account a discrete event that, properly approached, decreases the
    resulting delay; and (d) failing to take into account the complexity of the
    case.

[14]

I
    conclude that the resulting delay for Lonsbary is actually just below 30 months.
    I further conclude that, although the resulting delay for Jurkus rests three
    weeks above the ceiling, the complexity of the proceeding accounts for those
    three weeks. Moreover, the transitional exceptional circumstance applies in
    this case and there was no unreasonable delay under the pre-
Jordan
framework.

(2)

The Total Delay

[15]

The
    parties agree that there is a small error in the calculation of the total delay
    at 39.3 months. The charges were laid on March 5, 2014. The anticipated end of
    trial was May 26, 2017. Properly calculated, the parties agree that the total
    delay is 38 months and three weeks. This is the starting point for calculating
    the net delay.

(3)

The Net Delay: Taking into Account the Defence Delay

·

The respondents ask for a one-month adjournment

[16]

After
    their committal to trial, the respondents appeared by agent in the Superior
    Court of Justice for the first time on February 9, 2016. The agent asked for an
    adjournment to the next assignment court on March 8, 2016, in order to set a
    judicial pre-trial date. No reasons were given for this request.

[17]

The
    application judge correctly determined that this adjournment request resulted
    in 28 days of defence delay. I will call this one month, just as I will later
    refer to an over three-month delay as three months. Properly calculated, this brings
    the net delay to 37 months and three weeks.

·

The breakdown in communication - delay in obtaining a judicial
    pre-trial date

[18]

On
    March 8, 2016, Lonsbarys counsel appeared in court on behalf of both
    respondents. He advised the court that the parties would like to set a date
    for a judicial pre-trial. Although Lonsbarys counsel said that he had
    provided many dates to Jurkus counsel, the court was informed that the
only dates
 (emphasis added) on which Jurkus counsel
    was available were July 29, August 19, and August 22. The court accommodated the
    earliest date of July 29.

[19]

Relying
    upon affidavit evidence filed, the application judge found that there had been
    a breakdown in communication between the administrative staff in the lawyers
    offices that resulted in Lonsbarys counsel misinforming the court that Jurkus
    counsels earliest availability was July 29, 2016. The application judge found
    that Jurkus counsel was actually available for a pre-trial on four days in
    March and on May 13. She also found that Jurkus counsel was available to appear
    at a judicial pre-trial by way of teleconference on April 4 and 7, 2016, but
    that the court refused to accommodate this request relying on the Regions
    historical practice. As for Lonsbary, the application judge determined that,
    although he was not available for a judicial pre-trial during the months of March
    and April, he was available starting in May.

[20]

Based
    upon these factual findings as to when counsel were actually available, the application
    judge found that Jurkus was responsible for the delay after May 13, 2016 (his
    last available date for a pre-trial) up to July 29 (the date requested): a
    total of 75 days. The application judge found Lonsbarys delay was from March
    11 (the date that Jurkus was actually first available to appear at a pre-trial,
    but Lonsbary was not) and the end of April (when Lonsbary actually became
    available for a pre-trial): a total of 50 days.

[21]

The
    appellant maintains that the application judge erred in her approach to calculating
    the defence delay, arguing that the delay should have been calculated based
    upon what actually happened, not what might have happened had the court been accurately
    informed. Hence, the appellant maintains that the delay between March 8 and
    July 29, 2016 was defence delay. As the defence may have needed three weeks to
    prepare for the judicial pre-trial, the appellant accepts that the defence
    delay should be calculated at four months.

[22]

The
    respondents first argue that the attribution of defence delay is a finding of
    fact entitled to deference. This court should not interfere with the
    application judges approach to what she perceived as counsels
    miscommunication.

[23]

Jurkus
    also emphasizes that he should not be penalized for a simple miscommunication
    on the part of Lonsbarys counsel who acted as his agent that day. Lonsbary agrees,
    but also argues that if the court is inclined to interfere with what he
    characterizes as the application judges factual determination, then any error
    in the calculation of defence delay inures to his benefit. He maintains that the
    affidavit evidence establishes that he was also available to participate in a
    judicial pre-trial on April 4 and 7, 2016, when Jurkus would have made himself
    available by teleconference. The only reason that the pre-trial did not go
    ahead was the courts refusal to hold judicial pre-trials by teleconference.
    Accordingly, he argues that, if deference is to be set aside, then his delay
    should be decreased to reflect his and Jurkus availability for a pre-trial on
    April 4 and 7, 2016.

[24]

I
    conclude that four months of this period of time was defence delay for the
    following reasons.

[25]

First,
    I do not agree that the designation of a period of time as defence delay is a
    finding of fact that is owed deference. Although underlying findings of fact
    are reviewed on a standard of palpable and overriding error, the
    characterization of those periods of delay and the ultimate decision as to
    whether there has been unreasonable delay are subject to review on a standard
    of correctness:
R. v. M.(N.N.)
(2006), 209 C.C.C. (3d) 436 (Ont.
    C.A.), at para. 6;
R. v. Schertzer,
2009 ONCA 742, 248 C.C.C. (3d)
    270, at paras. 71-72, leave to appeal refused [2010] S.C.C.A. No. 3;
R. v.
    Tran,
2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19.

[26]

Consequently,
    while I agree that the application judges determination of the facts is to be
    accorded deference, her decision to assign each of the respondents only a part
    of the delay from March 8 to July 29, 2016 is a decision reviewable on a
    standard of correctness. Applying that standard, I find that the application
    judge erred in how she characterized this period of delay.

[27]

When
    Lonsbarys counsel appeared in court on March 8, 2016, he was appearing for
    both Lonsbary and Jurkus. Although mistaken about dates and undoubtedly acting
    in good faith, the fact is that the earliest judicial pre-trial date given was July
    29, 2016.  He said that Jurkus counsel could not accommodate an earlier date. Although
    Lonsbary said that he had earlier available dates, he did not mention what they
    were. Lonsbarys counsel seemed content that the matter go to July 29.

[28]

The
    court and Crown could only operate on the information provided. There is no evidence
    to suggest that the Crown or court could not have accommodated an earlier
    pre-trial. Indeed, the application judge found as a fact that earlier judicial
    pre-trial dates were readily available.

[29]

Although
    the misunderstanding operates unfortunately for the respondents, arising as it
    did from a good faith error, it does not operate unfairly. Indeed, it would be
    unfair to the publics right to a trial in a reasonable time to fail to hold
    the defence to account for this period of delay which was caused solely by what
    counsel put on the record on March 8. Counsels request for the July 29
    pre-trial date is determinative of the characterization of this period of
    delay.

[30]

Even
    if this were not the case, I do not accept the submission that the apparent refusal
    to hold a judicial pre-trial by teleconference, something said to have been conveyed
    by the court office to Jurkus office, neutralizes what would otherwise be
    defence delay. There was nothing to prevent counsel on March 8, 2016 from
    raising a concern with the judge about the need for a judicial pre-trial by teleconference.
    Indeed, it would seem that counsel who appeared in court on March 8, 2016, had
    previously succeeded in having a judicial pre-trial by teleconference in
    another case. As he mentioned during his s. 11(b) submissions:

I think it is an error in their policy to disallow attendance
    by way of pre-trial conference, and it will only serve to increase delay And
    for the life of me  and perhaps somebody can enlighten me  I know not why
    that is their rule its trite that other jurisdictions do in fact do this. I
    dont mean to testify,
but I think its also trite that this jurisdiction
    has done it on occasion. In fact, [another judge] and this court met with
    myself and [another counsel] by phone once, when I was in Costa Rica, resolved
    the trial.
[Emphasis added]

[31]

Creative
    solutions can sometimes be found to accelerate matters, but such solutions will
    remain elusive unless the court is notified of the concern. Not only was the judge
    presiding on March 8, 2016 not apprised of any concern, he was simply asked to
    set the judicial pre-trial for July 29, 2016. This resulted in delay caused
    solely by the defence.

[32]

I would add that nothing in these reasons should be construed
    as suggesting that counsel making themselves available for a judicial pre-trial
    by teleconference will avoid a finding of defence delay. Personal appearance accords
    with the purpose pre-trials are designed to achieve. They are not simply part
    of a check-list on the road to trial. They are designed to promote general
    efficiency in the criminal justice system by, among other things, facilitating
    resolutions, resolving issues, simplifying motions, arriving upon agreed facts,
    identifying triable issues and setting meaningful schedules:
R. v.
    Konstantakos,
2014 ONCA 21, 315 O.A.C. 123, at para. 8;
Judicial
    Pre-Trial Conferences Scheduled for Tuesday October 11 Re, 2016,
2016 ONSC
    6398, at para. 8.
Criminal Code,
s. 625.1;
Criminal Proceedings
    Rules for the Superior Court of Justice (Ontario)
, SI/2012-7, Rule
    28.05(9). In this age of concern about delay in our criminal justice system,
    there is an added premium on ensuring the success of judicial pre-trials. Undoubtedly,
    personal attendance enhances the opportunity for meaningful discussions and
    successful outcomes.

[33]

Although
    teleconferences may be appropriate in some situations, particularly where a
    long delay may be generated to accommodate personal attendance, at a minimum,
    counsel must inform the court of their availability to proceed this way. That
    did not happen in this case.

[34]

I
    conclude that there was four months of defence delay between when the pre-trial
    date was requested and when it occurred. This decreases the net delay for both
    accused to 33 months and three weeks.

·

Lonsbarys delay in scheduling the trial

[35]

The
    parties agree that the application judge failed to consider a 28-day delay
    caused by Lonsbary when his counsel was not available for trial in April 2017. This
    error arose from an erroneous trial Crown submission. Even so, the parties
    agree that the record clearly establishes that Lonsbarys counsel caused a
    month of delay when he was not available for trial. This constitutes another month
    of defence delay attributable to Lonsbary.

·

Conclusion on net delay

[36]

Correctly
    approached, Jurkus net delay was 33 months and three weeks. Lonsbarys net
    delay was 32 months and three weeks. I will now consider whether there were
    exceptional circumstances that warranted the subtraction of time from the net
    delay.

(4)

The Resulting Delay: Discrete Event

·

Overview

[37]

As
    the net delay falls above the 30-month ceiling, it is presumptively
    unreasonable and it was for the Crown to rebut that presumption. As I will
    explain below, I find that the application judge erred in rejecting the submission
    that a three-month delay generated by the need for an additional day to
    complete the preliminary inquiry was a discrete event. Properly accounted for,
    this discrete event places Lonsbarys resulting delay just below the 30-month
    ceiling and Jurkus resulting delay just above the ceiling.

·

The need for an additional day to complete the preliminary inquiry

[38]

This
    matter was pre-tried before the preliminary inquiry was scheduled to proceed.
    Counsel agreed that it would take four days to complete the preliminary inquiry.
    A trial readiness form was prepared. Although it contains reference to numerous
    Crown witnesses, none were listed for the defence. The preliminary inquiry was scheduled
    for three days in May, with a fourth day set for July 13, 2015.

[39]

One
    week before the start of the preliminary inquiry, the third co-accused,
    Langford, provided a statement to the police. The statement was disclosed two
    days later. The trial Crown then withdrew the charges against Langford on the
    first day of the preliminary inquiry. Langford was then called to testify. His examination-in-chief
    started after the afternoon recess and concluded before the end of the court
    day. His cross-examination was completed before lunchtime the following day.

[40]

During
    the afternoon of the third day of the preliminary inquiry, Crown counsel
    announced that her final witness was not available to testify that day. She proposed
    that the witness be called on the next scheduled day, July 13, 2015. Lonsbarys
    counsel then announced, for the first time, that he had subpoenaed a witness to
    testify on July 13, 2015. Accordingly, he did not think that they would finish the
    preliminary inquiry that day. With the judges encouragement, counsel agreed to
    attend at the trial co-ordinators office to secure a fifth day, just in case
    they needed more time to complete the matter.

[41]

On
    July 13, the Crowns case was completed before the lunch break. Lonsbary then called
    his witness, Timothy McFadden, whose evidence continued until close to the end
    of the court day. The matter had to be put over to a new date for closing
    submissions. Although the record is unclear as to how the date was chosen, October
    16, 2015 was settled upon as the fifth and final day for the preliminary
    inquiry. Lengthy closing submissions were made on that final day.

[42]

The
    application judge rejected the trial Crowns primary position that the three-month
    delay resulting from the need for an additional day to complete the preliminary
    inquiry was defence delay. The appellant does not dispute this finding.
    Instead, the appellant takes issue with the application judges rejection of
    the trial Crowns alternative position, that the need for the additional day
    arose from a discrete event, resulting in an unavoidable three-month delay.

[43]

The
    application judge appears to have found that the need for the additional day,
    causing the three-month delay, was directly related to the Crowns decision to
    call Langford to testify and that this was avoidable. To the extent that
    Lonsbarys counsels decision to call a witness extended the length of the
    preliminary inquiry, the application judge appears to have concluded that this
    turn of events should have been anticipated by the Crown:

The Crown has suggested that Mr. Lonsbarys decision to call
    evidence at the preliminary hearing was unanticipated based on the contents of
    the trial readiness certificate filed in advance of scheduling the preliminary
    hearing dates and should be considered a discrete event which added in excess
    of 3 months to the period of delay. I am unpersuaded the decision to call Mr.
    McFadden as a witness at the preliminary hearing is a discrete event of the
    kind envisioned in
Jordan.
The Crown could have foreseen this event
    occurring and planned for it particularly given its knowledge of the resolution
    of the charge against Mr. Langford. The defendant was entitled to call
    evidence. Albeit unexpected, this development was not exceptional.

[44]

The
    respondents maintain that the delay was a direct result of the Crowns actions
    and could have been avoided. At a minimum, as the Crown did not lead any
    evidence showing when they reached the resolution agreement with Langford, or
    when they decided to call him as a witness, there was no basis upon which to
    conclude that the delay was unforeseeable, unavoidable or irremediable.

[45]

The
    respondents also argue that Langfords evidence was not necessary at the
    preliminary inquiry and that the Crown has to live with its choice to call him
    as a witness. Additionally, the respondents maintain that the Crown failed to
    make efficient use of the court time it had available. In particular, the Crown
    did not have its final witness ready to testify on the third day and,
    accordingly, part of the fourth day had to be consumed by that witness
    evidence.

[46]

Finally,
    the respondents submit that the length of time it took to obtain a fifth day to
    complete the preliminary inquiry was unreasonable. This constitutes the courts
    failure to mitigate the delay.

[47]

I
    do not agree that the delay generated by the need for a fifth day can be laid
    so easily at the feet of the Crown or the court.

[48]

As
    I see it, two critical things happened that changed the landscape as it
    appeared at the time that the four days were originally set for the preliminary
    inquiry: (1) Langford became a Crown witness; and (2) counsel for Lonsbary
    decided to call McFadden as a witness.

[49]

I
    will first address the Langford matter. The application judge accurately
    described this as a dramatic change in the landscape. The respondents former
    co-accused opted to assist the prosecution. Langford only provided his
    statement one week before the preliminary inquiry started. It was almost
    immediately disclosed to the respondents.

[50]

Until
    Langford gave his statement and showed up to testify, nothing would have been
    for sure. In the uncertain and complex world of Crown-defence negotiations in
    multiple accused cases, it would be unfair to suggest that the Crown did not
    proactively account for something that may never happen. Moreover, even though
    the Crown added Langford to their witness list, the Crown still called fewer
    witnesses to testify than had been identified on the trial readiness form.

[51]

I
    disagree with the suggestion that the Crown has to live with its decision to
    call Langford to bolster its case, as it is detached from the context in which
    this occurred. This was a preliminary inquiry and not a trial. It was to
    everyones benefit that Langford testify at the preliminary inquiry. Undoubtedly,
    the respondents would rather hear what their former co-accused had to say at
    the preliminary inquiry, before they heard from him at trial. The sheer length
    of the cross-examination demonstrates the respondents interest in Langfords
    evidence.

[52]

Although
    in a slightly different factual context,
R. v. Gordon,
2017 ONCA 436,
    348 C.C.C. (3d) 426, is of assistance on this point. After the second day of
    trial, a co-accused decided to change his plea, cooperate with the police,
    provide a statement and testify. The resulting delay was held to be reasonably
    unforeseen and reasonably unavoidable, qualifying as an exceptional
    circumstance: para. 13. Even if Langfords evidence stood alone in extending
    the time needed for the preliminary inquiry, consistent with the reasoning in
Gordon,
it would constitute an exceptional circumstance. It did not stand alone.

[53]

The
    second event was Lonsbarys counsels decision to call McFadden. While I agree that
    calling a defence witness at a preliminary inquiry is not an entirely
    exceptional event, it is far from common. Indeed, Lonsbarys own counsel
    referred to it as a very unusual move. I do not agree that the Crown should
    have anticipated this event. Again, this was a preliminary inquiry, not a
    trial. The only way that the Crown could have anticipated the defence calling a
    witness is if the defence had announced that they intended to do so. Had they
    done so, the time needed for this witness could have been built into the
    estimated length of the preliminary inquiry.

[54]

Moreover,
    although Lonsbary is right to note that the Crowns final witness was
    unavailable to testify during the afternoon of the third day of the preliminary
    inquiry, neither was his own witness. Even if the Crown had closed its case on
    the third day, McFadden would not have been able to testify until the fourth
    day. Bearing in mind the length of McFaddens evidence and closing submissions,
    they simply could not have been completed in a single day. The need for a fifth
    day was inevitable.

[55]

In
    the end, the reality is that the testimony of both Langford and McFadden added
    to the need for a fifth day. These are precisely the types of discrete events
    that
Jordan
contemplated. Trials are not well-oiled machines and
    things can quickly go awry in a way that leads to delay:
Jordan,
at
    para. 73. An example given in
Jordan
, is where a trial goes longer
    than reasonably expected, even where the parties have in good faith attempted
    to establish realistic timelines. In these circumstances, it is likely the
    delay was unavoidable and will constitute an exceptional circumstance:
Jordan,
at para. 73. These comments have equal application when it comes to a
    preliminary inquiry.

[56]

Finally,
    I wish to address the suggestion that the court is responsible for the delay
    because it could not provide a continuation date until almost three months
    following the originally scheduled end for the preliminary inquiry.
I agree with the respondents that both

the court system and the Crown must take reasonable steps to
    mitigate delay caused by discrete exceptional events. The message from
Jordan
is clear: courts must be prepared to respond promptly and
    effectively to unexpected or unavoidable delays in criminal trials. However, I
    am not satisfied that the court was responsible for the three-month delay in
    this case.

[57]

First,
    the record is unclear as to why the October date was chosen. In particular, at
    the end of court on July 13, Crown counsel mentioned that they had been hoping
    that something might come up earlier than the October 16 return date.
    Lonsbarys counsel said that they had been looking at the possibility of a
    summer date, but that it didnt work for
the schedules

    (emphasis added). Crown counsel said that they werent able to get anything.

[58]

It
    is unclear what schedules made an earlier date impossible. In these
    circumstances, it would be wrong to simply assume that the court did not have a
    day available between July 13 and October 16, 2015 to complete the preliminary
    inquiry. Accordingly, while I accept that the court and Crown must take reasonable
    steps to mitigate delays arising from discrete events, there is nothing in the
    record to suggest that this did not happen. To the contrary, it appears that,
    at the courts encouragement, everyone worked toward getting the earliest
    available continuation date that worked for all.

[59]

Second,
    it is important to remember the inquiry into reasonable steps remains a contextual
    one. In light of
Jordan
, reasonable efforts must be made to obtain
    continuation dates as quickly as possible. However, the reality of extremely busy
    provincial courts, handling the vast majority of criminal matters, must also be
    kept in mind:
R. v. Allen
(1996), 110 C.C.C. (3d) 331 (Ont. C.A.), at
    para. 27.

[60]

I
    conclude that the need for a fifth day arose from a discrete event and that the
    ensuing delay was both reasonably unavoidable and could not reasonably have
    been remedied.

The application judge erred in finding to the contrary.

·

Conclusion on resulting delay

[61]

Properly
    approached, the three months from July 13 to October 16, 2015 should be
    subtracted from the net delay. I will call this three months. Accordingly, the resulting
    delay for Lonsbary is 29 months and three weeks and for Jurkus, 30 months and three
    weeks. This leaves Lonsbary below the 30-month ceiling. There is no suggestion
    that if the delay falls below the ceiling, it is nonetheless unreasonable.
    Accordingly, my
Jordan
analysis respecting Lonsbary is complete.

[62]

As
    the resulting delay for Jurkus falls three weeks above the ceiling, I will go
    on to consider how this three-week period should be approached under
Jordan
.

(5)

Complexity: The Residual Three Weeks

[63]

The
    trial Crown took the position that the time exceeding the 30 months was
    justified by the complexity of the proceedings. He referred to the voluminous
    disclosure, large number of witnesses, and novel legal issues. The trial Crown
    maintained that the 87 days it took to receive a committal decision also reflected
    the complexity of the case.

[64]

The
    application judge rejected this position, finding, among other things, that the
    offence  failing to provide the necessaries of life  is not a novel or
    rarely used section of the
Code
. Even so, she observed that there was
    a certain novelty arising from the use of the provision to support an offence
    arising from the alleged criminal conduct of correctional officers during the
    course of their employment duties.

[65]

She
    also noted that the Crown had elected to proceed against the accused jointly
    and was obligated to ensure that this did not compromise their right to trial
    in a reasonable time. She acknowledged that additional time had been required
    because of the joint prosecution:

the additional time incurred to conduct judicial pre-trials
    and resolution meetings with Mr. Langford in an effort to resolve the issues
    with Mr. Langford in exchange for his evidence to bolster the case against the
    applicants added to the delay.

[66]

The
    appellant appears to suggest in this court that the case does not qualify as an
    exceptionally complex one. Even so, the jurisprudence is clear that complexity
    can arise from cases involving more than one accused: Proceeding jointly
    against multiple co-accused, so long as it is in the interest of justice to do
    so, may also impact the complexity of the case,
Jordan,
at para. 77;
Gopie,
at para. 169;
R. v. Manasseri,
2016 ONCA 703, 132 O.R. (3d) 401,
    at para. 311.

[67]

I
    conclude that this was a complex case, at least complex enough to justify an
    additional three weeks above the ceiling. Among other things, the complexity of
    the matter is revealed by the length of the closing submissions and the fact
    that committal was so hotly contested. Moreover, the simple coordination of
    dates among the calendars of three defence counsel, the Crown and court added a
    layer of complexity to the proceedings. This is borne out by the record,
    including the counsel correspondence going back and forth. This is the type of
    inherent delay, arising in multiple accused trials, that was described as a
    fact of life in
R. v. Vassell,
2016 SCC 26, [2016] 1 S.C.R. 625, at
    para. 6, a judgment released on the eve of
Jordan.

[68]

Jurkus
    suggests that the complexity of the proceeding was within the Crowns control,
    and that the accused should have been severed, allowing for a more streamlined
    proceeding against each. I disagree. There are a host of reasons why accused
    charged in relation to the same incident should be tried together, such as: conserving
    judicial and trial resources; avoiding inconsistent verdicts; and avoiding witnesses
    having to testify more than once:
Gopie,
at para.
138;
R. v. Whylie
(2006), 207 C.C.C. (3d) 97 (Ont. C.A.), at para.
24;
R. v. L.G.,
2007 ONCA 654, 228 C.C.C. (3d) 194, at para. 63. In this case,
    it was clearly in the interests of justice to proceed against the three accused
    together, even though, as acknowledged by the application judge, this added to
    the complexity of the matter.

[69]

Instead
    of advancing complexity, the appellant now suggests that the time it took to
    release the decision on committal  87 days  is a discrete event that should
    be subtracted from the net delay. In essence, the appellant takes the position
    that judicial reserve time should never be counted in the calculation of delay.

[70]

The
    respondents urge this court to refuse to entertain this submission, having
    regard to the fact that it was not raised before the application judge. In
    particular, relying upon
R. v. Varga
(1994)
,
18 O.R. (3d) 784
    (C.A.), at para. 27, Lonsbary maintains that the Crown is precluded from
    advancing a different case on appeal than that advanced at trial. In other
    words, the Crown is stuck with its characterization of the issue below, one of
    complexity.

[71]

Although
    I disagree that the Crown is stuck on appeal with an erroneous position taken
    on a s. 11(b) application at trial (
R. v. Steele,
2012 ONCA 383, 288
    C.C.C. (3d) 255, at para. 19;
Tran,
at para. 31), it is unnecessary to
    consider this issue in order to resolve the appeal. The fact is that this was a
    complex matter, a finding that is consistent with the Crown position below.

[72]

In
    any event, only Jurkus delay rested above the ceiling, and only by a total of
    three weeks. In the context of this multi-accused case, with many moving parts,
    and complex issues that required resolution, the three weeks above the ceiling
    was reasonable.

(6)

Transitional Exceptional Circumstances

[73]

Jordan
provides that in cases in which the delay exceeds the 30-month ceiling, a
    transitional exceptional circumstance may arise where the charges were brought
    prior to the release of this decision (at para. 96). It recognizes that the
    new 11(b) framework should not automatically transform what would previously
    have been considered a reasonable delay into an unreasonable one: (at para.
    102).

[74]

Accordingly,
    if a
Jordan
analysis leads to a finding of unreasonable delay, the
    court is to consider whether a transitional exceptional circumstance applies. Although
    the
Jordan
analysis does not result in a finding of unreasonable delay
    in this case, given that the matter hovers closely to the 30-month ceiling, I
    will briefly address why this case also passes scrutiny as a transitional
    exceptional circumstance.

[75]

In
Gopie
, at para. 178, this court emphasized the relevant factors informing
    a transitional exceptional circumstances analysis: (i) the complexity of the
    case; (ii) the period of delay in excess of the
Morin
guidelines (a
    total period of between 14 to 18 months for institutional delay for matters
    proceeding in superior courts); (iii) the Crown's response, if any, to any
    institutional delay; (iv) the defence efforts, if any, to move the case along;
    and (v) prejudice to the accused.

[76]

Although
    the application judge was alive to the need to consider the transitional
    exceptional circumstance, she erred in her assessment of the matter. I will
    focus on the calculation of delay under the
Morin
guidelines.

[77]

The
    application judge referred to certain institutional and Crown delay. However, it
    is difficult to ascertain the basis upon which she came to the conclusion that
    the
Morin
guidelines had been exceeded. A proper
Morin
analysis
    demonstrates a delay well under the

guidelines.

[78]

From
    the date of the charge (March 5, 2014) to the date when the preliminary inquiry
    was set (September 30, 2014), resolution discussions were being held, judicial
    pre-trials were being conducted, and disclosure was being made and reviewed.
    There were numerous court appearances over this period of time. The appellant
    maintains that 59 of these days were institutional or Crown delay. The
    respondents say that 111 days fall into this category.

[79]

The
    respondents submit that the disclosure process in this case took over 20 months
    and that the Crown is entirely responsible for this delay. Although I agree
    that disclosure took a considerable amount of time, I disagree that the Crowns
    ongoing disclosure obligations delayed the matter. At no time did the defence
    request that things move faster. Indeed, the record demonstrates that the
    respondents were not unhappy with the pace of the proceedings.

[80]

As
    the application judge correctly noted, a number of adjournment requests were
    made on the consent of all parties over a number of months leading up to
    scheduling the preliminary inquiry. I find that under a correct
Morin
approach,
    a reasonable intake period for a three accused case, involving what the application
    judge observed was significant disclosure, is five months:
Steele
, at
    para. 17. This leaves roughly two months as institutional delay.

[81]

On
    September 30, 2014, the parties appeared to schedule the preliminary inquiry.
    However, the Crown had not prepared a trial readiness form. The matter had to
    be adjourned for one week. The appellant agrees that this caused a week of Crown
    delay.

[82]

When
    the matter returned on October 7, 2014, the preliminary inquiry was set for May
    11, 12, 15 and July 13, 2015. The respondents submit that half of the time
    between scheduling the preliminary inquiry on October 7, 2014 and its start on
    May 11, 2015, should count as institutional delay (108 days). The appellant submits
    that the entire time period is neutral.

[83]

I
    agree with the appellant. The start date of the preliminary inquiry
    corresponded with Jurkus counsels first available date to conduct the
    preliminary inquiry. Lonsbarys trial counsel did not put his available dates
    on the record. As noted by this court in
Konstantakos
, at para. 10,
    [i]nstitutional delay does not start to run until the parties are ready for
    trial and the system cannot accommodate them. Consequently, under the law as
    it existed then, this entire period of time is neutral, as the date selected
    for the start of the preliminary inquiry was the earliest date counsel for
    Jurkus was available to proceed and Lonsbarys availability is unknown.

[84]

The
    preliminary inquiry took place over five days: May 11, 12, 15, July 13 and
    October 16, 2015.  The appellant concedes that the period of time between May
    15 and July 13 (59 days) is institutional delay. This is a generous concession
    as it is unclear as to why the fourth day was scheduled for July 13, 2015. For
    the sake of argument, I am prepared to accept the concession of two months of
    institutional delay.

[85]

When
    it became apparent that an additional date was required to complete the
    preliminary inquiry, the matter had to be put over to October 16, 2015 (95 days
    away). The appellant submits that this should be characterized as neutral time;
    the respondents say it is institutional delay. The parties rely upon their
    earlier positions respecting the reasons for why an additional day was
    required. Based on my earlier reasoning, this period of time counts as neutral.

[86]

The
    preliminary inquiry was completed on October 16, 2015. The committal decision
    was rendered on January 11, 2016.

[87]

The
    parties agree that the time period between October 16, 2015 (the last day of
    the preliminary inquiry) and October 20, 2015 (when the parties appeared in
    court to set a date on which to receive the decision on committal) is neutral
    time. They also agree that 30 of the remaining 83 days it took to receive the
    committal decision is inherent time.

[88]

I
    start by noting that the record is unclear as to why it took that long to
    deliver the decision on committal. What is clear, though, is that following the
    closing submissions on October 16, 2015, the preliminary inquiry judge said
    that she would likely be prepared to give her decision about six weeks later.
    She permitted counsel to pick the date that they would like to return for the
    decision. When the parties returned before a different judge a few days later,
    the defence asked for a return date of January 11, 2016. Accordingly, it is not
    clear that the preliminary inquiry judge needed the full 83 days, following
    October 20, 2015, to deliver her reasons; she may well have been prepared to
    give her reasons earlier but for counsels request to return January 11, 2016.

[89]

In
    any event, it is unnecessary to decide whether anything in excess of 30 days
    for judicial reserve time is institutional delay, as it does not affect the
    conclusion under the transitional exceptional circumstance analysis. Even if two
    months was to be considered institutional delay, this matter still would not
    exceed the
Morin
guidelines.

[90]

The
    respondents were committed to stand trial on January 11, 2016. The first
    judicial pre-trial was scheduled for July 29, 2016. The parties agree that one
    month between January 11, 2016 and their first appearance in Superior Court on
    February 9, 2016 is neutral.

[91]

On
    their first appearance in Superior Court on February 9, 2016, the respondents
    asked for a month adjournment. All parties agree this was defence delay.

[92]

As
    before, when the parties returned to court on March 8, 2016, Lonsbarys counsel
    asked that the judicial pre-trial be set for July 29, 2016. He said that
    Jurkus counsel did not have earlier dates. Nor did Lonsbarys counsel offer
    earlier dates. For the reasons given previously, this entire period was a
    combination of inherent and defence delay.

[93]

On
    July 29, 2016, the parties attended a judicial pre-trial. This was now in the
    wake of
Jordan
having been released. The matter was then spoken to on August
    9, 2016. The parties agree that the time between July 29 and August 9 is
    neutral.

[94]

On
    August 9, 2016, Lonsbarys counsel raised the topic of delay for the first
    time, suggesting that he would bring a s. 11(b) application seeking a stay of
    proceedings. At that point, Jurkus was silent on whether he would join that
    application. The parties were prepared to set dates for trial. Crown counsel
    put his dates on the record, suggesting he could proceed immediately, save the
    month of November. Lonsbarys counsel did not put his availability on the
    record, although it appears that he was generally available. Jurkus counsel
    was not available for trial until April 2017. The court indicated that it could
    accommodate a three-week jury trial starting on April 10, 2017, but Lonsbarys
    counsel was not available. Ultimately, the trial was scheduled to commence on
    May 8, 2017.

[95]

There
    is no need to assess this time in any detail. Even if the entire nine months
    from August 9, 2016 to May 8, 2017 was treated as institutional delay, the
    total institutional and Crown delay would be approximately 15 months, within
    the
Morin
guidelines. Given that Jurkus counsels earliest available
    trial date was in April 2017, and Lonsbary could not appear, at least in the
    month of April, the actual institutional delay is even less.

[96]

Aside
    from the
Morin
calculation of institutional delay, my earlier reasons
    address why this matter had some complexity. I see nothing on the record to
    suggest that the Crown delayed the matter. Although the disclosure took some
    time to complete, aside from the intake period, there is nothing on the record
    to suggest that the rate of disclosure slowed down the actual proceedings. I
    have previously addressed why the presumption of proceeding jointly against the
    accused was in the interests of justice. I also note that, until
Jordan
was
    released, the defence expressed no concern about delay.

[97]

Two
    further aspects of the application judges decision warrant consideration.

[98]

First,
    I disagree that this matter is one of moderate seriousness. The state placed
    the deceased into custody. He was murdered while under its care. State actors
    are alleged to have failed in their obligations to the deceased. I do not share
    the view that this is a matter of only moderate seriousness. There is a strong
    public interest in having the matter determined on its merits.

[99]

Second,
    in her analysis of prejudice, the application judge found that as a result of
    the delay, the applicants have suffered reduced earning capacity and have
    endured negative publicity and the continuing stigma (at para. 71). First, I
    do not agree that the respondents suffered reduced earning capacity because of
    delay. The evidence demonstrates that they lost their jobs because of their
    employers view of their job performance. This had nothing to do with delay.
    Second, I do not agree that the negative publicity resulted from delay. This
    happened because the respondents were charged.

[100]

Even if there
    had been unreasonable delay under
Jordan,
having regard to the length of time that this matter proceeded under
    the previous s. 11(b) framework, the complexity of the matter, the reasons for
    the delay, all counsels efforts to move the matter along, and prejudice,
I
    would have allowed the appeal under the transitional exceptional circumstance.

E.

CONCLUSION

[101]

I would grant
    the appeals, lift the stays of proceedings and remit the matter to the Superior
    Court of Justice for trial.

Released: May 28, 2018

Fairburn J.A.

I agree Robert J. Sharpe J.A.

I agree S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawrence, 2018 ONCA 464

DATE: 20180517

DOCKET: C64392

Doherty, Epstein and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Lawrence

Appellant

Ian Carter, for the appellant

Rebecca De Filippis, for the respondent

Heard: May 10, 2018

On appeal from the conviction entered on April 19, 2017 by
    Justice Diane M. Lahaie of the Ontario Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

Background Facts

[1]

The appellant and the complainant were drinking together in the evening at
    the complainants house.  No one else was home.  The appellant was severely
    intoxicated, but the complainant was not.  The complainant had to work the next
    day and drank moderately.  The appellant became boisterous, and the complainant
    asked him to simmer down.  The complainant went into the bathroom, and when he
    emerged, the appellant knocked him to the ground and bit off a large portion of
    his ear.  The complainant felt a sharp pain and blood running onto his skin.  He
    applied paper towels to his ear.  The appellant spat the complainants ear out
    onto the bar.  The complainant yelled at the appellant to leave and called 911.
    He retrieved his ear and placed it on ice in a zip-lock bag.  He then was taken
    to the hospital.  Doctors reattached the complainants ear.  The next morning,
    the appellant and the complainant exchanged text messages.  The appellant noted
    that he could not remember coming home and hoped he had not become a super ass
    hole last night, to which the complainant responded that the appellant had bit
    his ear off and he might lose it.  The appellant responded O fuck me.
    Unfortunately for the complainant, weeks later his reattached ear fell off.

[2]

In his statement to the police, the appellant could not recall what
    happened at the complainants house.  He also confirmed that there was no one
    else at the residence.  It was obviously him, and he was not denying it.

[3]

The appellant was charged with aggravated assault.

The Trial

[4]

The trial was short.  The Crowns case was completed in a day and
    consisted of the complainants testimony, the appellants police statement,
    photographs of the complainants ear taken the day before trial, text messages,
    and the complainants hospital records from the night of the incident.  The
    defence called no evidence.

[5]

At trial, the appellants theory was that the complainant was an
    alcoholic, who was intoxicated on the night of the offence, and did not
    remember and could not describe what had happened or how the injury occurred.
    As such, the Crown was unable to establish the
actus reus
of the
    offence, that there was objective foresight of bodily harm, or that the appellant
    was not acting in self-defence.

[6]

The trial judge rejected the appellants theory and accepted the
    position of the Crown.  She found the complainant to be credible and reliable.
    She accepted his evidence that he had been drinking to moderation because of
    work the next day and that alcohol had not impaired his perception of what the
    appellant had done to him.  She was not left in any doubt that the appellant
    had bitten off the complainants ear:

I find that the accused lost it when he was told to simmer
    down by the complainant as he went to the washroom.  When the complainant
    returned, the accused threw him to the floor, jumped on top of him, and bit his
    ear off, spitting it out onto the bar.

Grounds of Appeal

[7]

The appellant raises two grounds of appeal.

[8]

First, he submits that the trial judge failed to resolve alleged
    material inconsistencies in the complainants evidence on critical issues: his description
    of the attack and his description of his wifes stance on his drinking. Second,
    he submits that the trial judge impermissibly speculated about the cause of the
    injury.

[9]

We do not accept either argument.

[10]

Regarding
    alleged inconsistencies in the complainants evidence, the trial judge considered
    the alleged inconsistencies.  She acknowledged that there was no mention in the
    complainants statement to the police that the appellant got on top of him and
    that this was a detail the complainant provided at trial.  However, it did not
    affect her assessment of the complainants credibility or reliability.

[11]

Second,
    the complainant never claimed to have a specific memory of the appellant biting
    off his ear.  In his examination-in-chief, he testified:

Q.  And what happened?

A.  He had  before I knew it he had, my ear was bitten off and
    I  I felt to the side of my head and I could feel the blood, so there was a
    roll of paper towels on a bookshelf directly in front of it, which I put on the
    ear, cause the blood was running down my face, and then I - I started yelling
    at him to get out of the house.

Q.  And do you remember at what point you realised that it was
    your ear?

A.  Well, when I felt the blood running down the side of my
    face, I had a sharp pain.

[12]

Similarly,
    in his statement to the police, he agreed that he did not feel when it
    happened, the bite to the ear.  There was no inconsistency.

[13]

Significantly,
    the trial judge found that the appellant had spat the complainants ear out
    onto the bar. This finding was available to her based on the evidence given by
    the complainant.  In the face of that evidence, there can be no serious dispute
    that the Crown had proven its case.  There really was no issue but that the
    appellant had bitten off the complainants ear.

[14]

The
    trial judge also addressed, in detail, the issue of the complainants wife and
    his drinking.  This argument was not pressed in oral submissions.  To the
    extent there was any inconsistency in the complainants evidence on his wifes
    stance on his drinking, it was minor in nature.

[15]

The
    Crown had a very strong case.  The trial judge was not required to review and
    resolve every inconsistency in the complainants evidence nor did she have to
    respond to every argument advanced by counsel.  At the conclusion of the
    evidence, the core of the complainants allegations against the appellant
    remained intact, namely, his ear had been bitten off by the appellant.

[16]

Regarding
    the appellants claim of impermissible speculation, the appellant complains
    that the trial judge found that the complainants injury resulted from a human
    bite in the absence of expert evidence.

[17]

We
    are unable to accept this submission.  The trial judge did not speculate.
    Rather, she accepted the complainants uncontradicted testimony that the
    appellant had bitten off his ear.  Although the complainants appearance in
    court and the photographs could not independently establish a human bite, they
    were consistent with the complainants testimony.

[18]

For
    these reasons, the appeal is dismissed.

Doherty
    J.A.

Gloria
    Epstein J.A.

S.E.
    Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Natsis, 2018 ONCA 425

DATE: 20180507

DOCKET: C61328

van Rensburg, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christy Natsis

Appellant

Marie Henein and Matthew Gourlay, for the appellant

Jamie Klukach and Luke Schwalm, for the respondent

Heard: November 14, 2017

On appeal from the conviction entered on May 29, 2015 by
    Justice Neil L. Kozloff of the Ontario Court of Justice, with admissibility
    ruling reasons reported at 2014 ONCJ 532 and reasons for judgment unreported.

Pardu J.A.:

[1]

The appellant was convicted of impaired driving
    causing death and dangerous driving causing death pursuant to ss. 255(3) and
    249(4) of the
Criminal Code
, R.S.C. 1985, c. C-46. The trial judge found
    that she crossed the
centre
line of a highway and
    crashed head on into an oncoming vehicle, killing the other driver, Bryan Casey.
    The appellant was sentenced to five years imprisonment.

[2]

The appellant appeals her conviction and submits
    the trial judge erred in two respects:

(a)

by admitting the expert opinion evidence of a
    police accident reconstruction officer who was unable or unwilling to provide
    the court with fair, objective, and non-partisan evidence; and

(b)

by refusing to exclude that expert evidence
    because the Crown failed to preserve and disclose the experts draft reports.

[3]

I would dismiss the
    appeal for the reasons that follow.

Factual background

[4]

The appellant was drinking alcohol at a bar at
    around 6:00 p.m. on the evening of March 31, 2011. She left the bar, got into
    her vehicle, and drove westbound along Highway 17.

[5]

The appellant crashed head on into the victims vehicle
    shortly before 8:00 p.m. on Highway 17. The victim was driving eastbound. Ontario
    Provincial Police (OPP) officers and traffic accident reconstruction experts
    were called to the scene.

[6]

Constable Kelly, an OPP officer, arrived on the
    scene at 11:51 p.m. on March 31, 2011. He was a Level III Technical Collision
    Investigator. He examined the scene by making observations and taking
    measurements. He also supervised another officer, McNish, who took photographs.
    Notably, Kelly observed a deep gouge in the eastbound lane that was closer to
    the shoulder than the centre line. Kelly noted that the debris field was more
    concentrated in the eastbound rather than the westbound lane.

[7]

Kelly re-examined both vehicles after they were
    towed away from the scene. At that time, Kelly noticed that the undercarriage
    of the victims vehicle was significantly damaged and bent while the
    appellants car did not suffer similar damage. Kelly came to the conclusion
    that the victims vehicle caused the gouge in the road and that the location of
    the gouge indicated where the collision occurred. Kelly testified that in his
    opinion the appellants vehicle crossed the centre line and crashed head on
    into the victims vehicle; the appellants position at trial was that the victim
    crossed into her lane and caused the accident.

Should the expert opinion evidence have been excluded because
    of bias?

[8]

The appellant submits that the trial judge erred
    in admitting Kellys expert opinion evidence. The appellant submits that Kellys
    evidence was so tainted by bias that his evidence should have been excluded.

[9]

The Supreme Courts decision in
White
    Burgess Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182
is the
    governing authority dealing with the effect of bias on the treatment of expert
    evidence
.

Although the
    admissibility decision in this case preceded
White Burgess
, the trial
    judge nevertheless applied the same test, based on Professor Pacioccos work (as
    he then was), that was later adopted by the Supreme Court in
White Burgess
.

[10]

It is common ground that the trial judge
    articulated the correct test; the appellant submits that he erred in applying
    that test.

[11]

I extract the following principles concerning
    the admissibility of expert evidence from
White Burgess
, at paras. 46-54:

(a)

Expert witnesses have a duty to assist the court
    that overrides their obligation to the party calling them. If the witness is
    unable or unwilling to fulfill that duty, their evidence should be excluded.

(b)

An experts attestation or testimony recognizing
    and accepting their duty to the court will generally suffice to meet the
    threshold for admissibility as it relates to bias.

(c)

The burden rests on the party opposing the admission
    of the evidence to show that there is a realistic concern that the experts
    evidence should not be received because the expert is unable or unwilling to
    comply with their duty to the court.

(d)

If the opposing party establishes that there is a
    realistic concern, then the party proposing to call the evidence must establish
    that the expert is able and willing to comply with their duty to the court on a
    balance of probabilities. If this is not done the evidence, or those parts of
    it that are tainted by a lack of independence or impartiality should be
    excluded.

(e)

Even if the evidence satisfies the threshold
    admissibility inquiry, any concern about the experts impartiality and
    independence is still a relevant factor in weighing the
R. v.

Mohan
,
    [1994] 2 S.C.R. 9 factors for admissibility  such as relevance, necessity,
    reliability, and absence of bias. Bias remains a factor to be considered in
    determining whether the potential helpfulness of the evidence is outweighed by
    the risk of the dangers associated with that expert evidence.

(f)

Expert evidence will rarely be excluded for
    bias; anything less than clear unwillingness or inability to provide the court
    with fair, objective, and non-partisan evidence should not result in exclusion.
    Rather, bias must be taken into account in the overall weighing of the costs
    and benefits of receiving the evidence. Context is important. Both the extent
    of the experts alleged bias and the nature of the proposed evidence are
    relevant.

The trial judges decision

[12]

The Crown proffered Kelly as an expert in a
    number of areas related to accident reconstruction:

a.

Collision
    Investigation and Analysis, including

i.

Gouges, scrapes, and scratches on roads,

ii.

Motor Vehicle Collision Debris Fields,

iii.

The Evaluation of Motor Vehicles involved in
    Collisions,

iv.

The Interpretation of Tire Marks at Collision
    Scenes,

v.

Speed Calculations and Distance Calculations,

vi.

Co-Efficient of Friction Measurement Using the
    Vericom VC-3000 accelerometer, and

vii.

Measurement of Collision Scenes, including the use
    of levels and the Sokkia SRX5 Total Station;

b.

The Interpretation of Airbag Control Module Data, alternatively
    known as Restraint Control Module Data or Event Data Recorders; and

c.

Perception Reaction time.

[13]

The trial judge restricted the scope of Kellys opinion
    evidence, at paras. 195-96 of his admissibility reasons, to analyses and
    opinions based directly upon his personal observations, calculations and
    measurements as documented by his field notes and in the photographs taken by
    him or at his direction. The trial judge stated, specifically, I will admit
    portions of his collision investigation and analysis, namely the
    identification, location, and significance of gouges, scrapes, and scratches on
    roads, the identification, location, and significance of motor vehicle
    collision debris fields, and the evaluation of motor vehicles involved in collisions.
    He also allowed Kelly to testify about speed calculations, though that evidence
    was largely redundant because of information downloaded from the vehicles data
    recording systems.

[14]

The trial judge concluded that there was a
    realistic concern that Kelly was biased, but he was not satisfied that it was
    probable that Kelly would be unable to present independently and impartially,
    those portions of his expert testimony that otherwise satisfied the
Mohan
prerequisites.

Analysis

[15]

On appeal, the appellant reiterates the arguments made to the
    trial judge. The appellant argues that Kellys evidence was so tainted by bias
    that it ought to have been excluded.

[16]

I begin with the observation that, absent an
    error in principle or an unreasonable ruling, a trial judges decision as to
    the admissibility of expert evidence is entitled to deference:
R. v. Shafia
,
    2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 230 and 234; and
R. v.
    McManus
, 2017 ONCA 188, at para. 68.

[17]

The trial judge dealt with all 29 aspects of
    Kellys conduct alleged by the appellant to show Kellys bias. Summarized, the
    appellant submits that Kelly saw himself, to some extent, as part of the
    investigative team rather than an independent expert. He selectively omitted from
    his report evidence that was favourable to the appellant, such as statements by
    a witness that she did not think the appellant was drunk and the appellants
    statement at the accident scene that the victims vehicle crossed into her
    lane. Kelly also proposed to testify about vehicle electronic data records  a
    field outside his areas of expertise. Finally, Kelly concluded very quickly
    after arriving at the accident scene that the appellants vehicle had crossed
    the centre line and hit the victims vehicle head on.

[18]

The trial judge made the following observations
    about Kellys evidence at paras. 181-83 of his admissibility reasons:

With that said, the evidentiary record as a
    whole suggests that Kelly (a) was unaware of, (b) did not fully appreciate, or
    (c) at worst, was prepared to contravene one of the fundamental requirements of
    an expert witness, namely that he be independent, unbiased and impartial.

I do not believe or even suspect that Kelly
    did so out of any malice. Kelly testified that he
believed
he was independent, impartial and unbiased, and I have no reason to
    disbelieve him. He simply did not know any better.

The evidentiary
    record also suggests that Kelly (a) was unaware of, (b) did not fully
    appreciate, or (c) at worst, was prepared to contravene (another) one of the
    fundamental requirements of an expert witness, namely that the expert must be
    qualified to offer an opinion and must possess special knowledge and
    experience in relation to the matters in issue.

[Emphasis in original.]

[19]

The principles underlying the traffic accident
    reconstruction evidence admitted in this case do not amount to novel scientific
    evidence. There was no challenge to the following principles:

(a)

When two vehicles collide head on, the
    undercarriages are forced downward into the road surface, causing scrapes and
    gouges in the road at the point of impact.

(b)

The gouges tend to be deepest at the point of
    impact

(c)

When two vehicles collide, debris from the
    vehicles will be compressed between them. As the vehicles separate a large part
    of the debris will fall at the area where the vehicles separate.

(d)

Damage to the undercarriage of a vehicle can
    indicate which vehicle caused the gouge to the road surface.

[20]

Kellys observations and measurements, and the
    photographs taken at the accident scene, were admissible as factual
    observations whether or not his opinion evidence about the conclusions he drew
    from those observations was admitted.

[21]

There was a deep gouge in the eastbound lane.
    This gouge was closer to the shoulder than the centre line and was caused by
    one of the vehicles involved in the accident. There was significant damage to
    the undercarriage of the victims vehicle but no such similar damage to the
    undercarriage of the appellants vehicle. Kelly therefore concluded that the
    deep gouge was caused by the victims vehicle when it was struck in the
    eastbound lane. Moreover, the debris field cast by the accident was substantially
    in the eastbound lane.

[22]

Despite his many criticisms of Kelly, and his
    conclusion that there was a realistic concern that Kelly might be biased, the
    trial judge concluded that Kelly was able to give his evidence, as
    circumscribed by the trial judge, impartially. The trial judge ultimately held,
    at para. 431 of his reasons for judgment, that Kellys conclusion that the
    accident occurred in the eastbound lane was both logical and evidence-based and
    that he could rely on Kellys evidence which was based on the location of the deep
    gouge, scrapes on the road, and the location of the debris field.

[23]

Here, the trial judge considered the factors that
    suggested bias four times in his analysis: at the threshold bias inquiry; at the
    bias inquiry; at the
Mohan
admissibility inquiry; and also when
    considering the weight to be given to Kellys evidence.

[24]

I see no basis to interfere with the trial judges conclusions
    regarding the admissibility of Kellys evidence. I agree that the degree of
    subjectivity associated with an experts opinion is a relevant factor in
    assessing whether conduct suggesting bias leads to the conclusion that the
    expert will not be able to give evidence independently and impartially.

Should the expert opinion evidence have been
    excluded because the Crown did not keep or disclose draft reports?

[25]

The appellant argued before the trial judge that
    the Crown had failed to
honour
its disclosure
    obligations by failing to maintain and disclose all draft reports, inclusive
    of all additions, deletions, changes, edits, corrections and the documentation
    surrounding them.

[26]

The trial judge rejected the proposition that
    draft reports had to be disclosed at paras. 212-217 and 219-221:

Every change made to an expert
    report while it is a work in progress effectively creates a new draft.
    Hypothetically, a TTCI or Collision Reconstructionist could prepare numerous
    drafts  making all kinds of additions, deletions, edits, corrections and other
    material changes  before submitting a final draft to the peer reviewer.

He may well consult with colleagues in order to develop,
    confirm, or enhance the opinion(s) contained in the draft. As long as he is
    otherwise qualified to offer an opinion and possesses special knowledge and
    experience in relation to the mater in issue, any opinion he does express is
    admissible (subject to the other
Mohan
prerequisites) as his own.

The TTCI or Collision Reconstructionist might then
    prepare numerous drafts  making all kinds of additions, deletions, edits,
    corrections, and other material changes  following receipt of the draft report
    back from the peer reviewer and before submission of his final report to the
    Crown.

Taking the defence position to its logical
    conclusion, the proposed Crown expert would be required to maintain each and
    every one of the drafts that were prepared along the way to the final version
    and turn them over to the Crown for disclosure to the defence. I do not believe
    that is either a sensible or necessary requirement.

That is not, however, the end of the story.

A related question to be addressed is whether a draft
    report prepared by a police officer and submitted to a fellow officer for
    review constitutes relevant evidence.

Even if there is no obligation on the Crown to
    preserve draft reports  or, putting it more narrowly, even if there is no
    obligation on police witnesses expecting to be proffered as expert witnesses to
    (a) preserve all drafts of their reports prepared prior to, and as submitted
    for, peer review, and, as received back with comments (if any) following peer
    review, and, as changed following peer review and before completion of the
    final report; and (b) to turn over all of the drafts referred to above to the
    Crown for disclosure to the defence  the unavailability of the draft report
    prepared and submitted by Kelly to Kern does have negative consequences for the
    Crown. It complicates the Crowns task of satisfying its burden of establishing
    that Kelly is qualified to offer expert opinion evidence because he possesses
    special knowledge and experience in relation to the matters in issue.

In that sense, the draft report submitted by Kelly to
    Kern for peer review  had it been preserved and disclosed  would have been
    relevant evidence in relation to the [fourth]
Mohan
prerequisite.

As noted above, its unavailability is
    one of the reasons why I have excluded significant portions of Kellys
    evidence.

[27]

On appeal, the alleged breach of disclosure
    obligations is narrowed to the failure to produce the final version of Kellys
    report submitted to a more senior officer, Kern, for peer review.

[28]

I agree with the observations of the trial judge
    at para. 220 that had it been preserved and disclosed  [it] would have been
    relevant evidence.

[29]

This document was relevant for two reasons. First,
    it concluded with a finding that the appellant was on her own side of the road
    at the time of the accident. Second, the number of errors in the report cast doubt
    on the authors competence, and the failure of a more senior accident
    investigator to catch the errors cast doubt on his competence.

[30]

The Supreme Court
    of Canada in
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, explicitly contemplates, at para. 18, that
    the Crown will have to disclose material that it cannot put into evidence
    itself, but that the defence may use in cross examination. As noted further in
Stinchcombe
,
    at pp. 345-346, [i]f the information is of some use then it is relevant and
    the determination as to whether it is sufficiently useful to put into evidence
    should be made by the defence and not by the prosecutor.

[31]

Given its relevance, the Crown should have
    disclosed Kellys final version of his report submitted for peer review. This
    document constituted fruits of the investigation in the hands of police: see
R.
    v. Jackson
, 2015 ONCA 832, 128 O.R. (3d) 161, leave to appeal refused,
    [2016] S.C.C.A. No. 38, at paras. 79-82.

[32]

The Crowns failure to disclose the document
    violated the appellants s. 7
Charter
rights. I am not satisfied,
    however, that this could possibly affect the reliability of the resulting
    decision or the fairness of the trial process. In
R. v. Dixon
, [1998]
    1 S.C.R. 244, the Supreme Court noted, at para. 23:

The right to disclosure of all relevant material has a broad
    scope and includes material which may have only marginal value to the ultimate
    issues at trial. It follows that the Crown may fail to disclose information
    which meets the
Stinchcombe
threshold, but which could not possibly
    affect the reliability of the result reached or the overall fairness of the
    trial process. In those circumstances there would be no basis for granting the
    remedy of a new trial under s. 24(1) of the
Charter
, since no harm has
    been suffered by the accused.

[33]

More recently, Juriansz J.A. described the
    consequences of a failure to make disclosure in
R. v. Tossounian
, 2017
    ONCA 618, 354 C.C.C. (3d) 365, at para. 15:

The appellant has the constitutional right to disclosure of all
    material that could reasonably be of use in making full answer and defence of
    the case against her as guaranteed by s. 7 of the
Canadian Charter of
    Rights and Freedoms
. At this stage, in order to be entitled to a remedy
    under s. 24(1) of the
Charter
, the appellant bears the onus of
    establishing two things. First, she must establish on a balance of probability
    that the Crown breached its obligation to make proper disclosure. Second, if
    she does so, she must go on to establish that the Crown's failure to disclose
    impaired her right to make full answer and defence:
R. v. Dixon
,
    [1998] 1 S.C.R. 244, at para 31.

[34]

Here, both Kelly and Kern testified that Kern
    made no substantive changes to Kellys report. Documentation completed by Kern
    at the time of the review confirmed that he only made grammar, verb tense, and
    formatting changes. Kern does not appear to have undertaken an in-depth review
    of Kellys report. For example, Kern missed Kellys misstatement of his final conclusion
    when Kelly said the appellant was in her own lane at the time of the collision.

[35]

Defence counsels meticulous and exhaustive
    cross examination revealed all the weaknesses in Kellys and Kerns evidence.
    The appellant suffered no harm from the failure to disclose Kellys final
    report submitted for peer review. The trial judges limitation of the scope of
    Kellys admissible expert evidence out of concern for his competence was
    sufficient to address any violation of the appellants right to disclosure of
    that report.
The appropriate focus in most cases of
    late or insufficient disclosure under s. 24(1) is the remediation of prejudice
    to the accused and the safeguarding of the integrity of the justice system:
R. v. Bjelland
, 2009 SCC 38, [2009] 2
    S.C.R. 651, at para. 26.

[36]

I am not satisfied that the failure to disclose
    impaired the right to make full answer and defence:
Stinchcombe,
at
    p. 348. No further remedy is appropriate or just pursuant to s. 24(1) of the
Charter
.

[37]

Accordingly, I would dismiss the appeal.

G.
    Pardu J.A.

I
    agree K. van Rensburg J.A.

I
    agree B.W. Miller J.A.

Released: May 07, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Peters, 2018 ONCA 493
DATE: 20180530

DOCKET: C63035

Strathy C.J.O., Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dexter Peters

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Chris Walsh, for the respondent

Heard: May 22, 2018

On appeal from the conviction entered
    on April 5, 2016, by Justice Fletcher Dawson of the Superior Court of Justice, sitting
    with a jury, and from the sentence imposed on August 2, 2016, with reasons reported
    at 2016 ONSC 4906.

REASONS FOR DECISION

[1]

The appellant appeals
    from his conviction and seeks leave to appeal his sentence for smuggling almost
    three kilograms of cocaine from Jamaica into Canada.

[2]

The appellant was the
    subject of a lookout on the Canadian Border Services Agency (CBSA) computer
    and was sent to a secondary customs inspection at Pearson Airport on his return
    to Toronto. At the secondary inspection, the CBSA officer (border officer)
    asked the appellant and elicited his answers to a number of questions about the
    contents of the appellants luggage while he searched them. As a result of his
    search, the border officer found several sealed plastic bags containing a dried
    food product.

[3]

Upon x-ray inspection,
    each plastic bag revealed round denser areas of organic material in the middle
    of each bag. The border officer asked the appellant several additional questions
    and obtained his responses about the provenance of the bags and how much he
    paid for them. When the border officer slit open the bags, he found a round
    puck-like object wrapped in brown packing tape inside each of the bags. He
    asked the appellant what it was and the appellant answered he did not know. The
    border officer cut into one of the pucks and found white powder. He conducted a
    narcotics field test which indicated the presence of cocaine. He thereupon
    arrested the appellant for importation of cocaine and provided him with his
    rights to counsel and a caution.

[4]

In his April 1, 2016
    ruling
[1]
dismissing the appellants pre-trial application to exclude his statements made
    to the border officers, the trial judge held that the appellant was not
    detained until the border officer cut into the plastic bags and found the pucks
    because it was then that a reasonable person placed in the position of the
    border services officer would conclude that there was such a strong
    particularized suspicion connecting the accused to a specific crime that the
    questioning and customs examination had changed from one of routine to a
    focused investigation of a specific offence. The trial judge concluded that
    the question and answer following detention could be subject to exclusion;
    however, in response to the trial judges inquiry, the appellants position was
    that he did not wish to have this question and answer excluded.

[5]

With respect to his
    conviction appeal, the appellant submits that the trial judge erred in
    determining that his s. 7 and 10(a) and (b)
Charter
rights had not been infringed. He argues
    that he was detained upon the x-raying of his luggage but that in breach of his
    rights, he was not immediately provided with his rights to counsel, and the
    border officer continued to ask him incriminating questions. He maintains that
    his answers should have been excluded from the evidence at trial.

[6]

According to the
    appellant, in considering the issue of detention, the trial judge erred by
    applying a higher standard, conflating the required reasonable suspicion test
    for detention in the border context with reasonable and probable grounds for
    arrest. The appellant also argues that the trial judge erred by placing too
    much emphasis on the border officers subjective belief that he did not have a
    sufficiently strong particularized suspicion that the appellant was smuggling
    illegal drugs when he x-rayed the food bags, which was not objectively
    reasonable.

[7]

We disagree.

[8]

T
he trial judge adverted to and applied the correct analysis
    to determine detention in an international border context, namely, whether the
    border officer has decided, because of some sufficiently strong particularized
    suspicion, to go beyond routine questioning of a person and to engage in a more
    intrusive form of inquiry. Where the officer has made that decision, the
    individual may be detained, even when subject to that routine questioning: see
R.
    v. Jones
(2006),
81 O.R. (3d) 481
(C.A.), at
    para. 42.

[9]

The trial judge properly
considered the factual
    circumstances of the case before him, including the objective reasonableness of
    the border officers subjective belief, through the lens of a reasonable
    person standing in the shoes of the
[
border
]
officer: see
R. v. MacKenzie
, 2013 SCC 50,
[2013] 3 S.C.R. 250,
at para. 63. The trial judge concluded that he was unable to say
    either that
[
the border officer
    who questioned the appellant
]
had grounds to arrest at that point or that he had such particularized
    suspicion in relation to a specific offence that the
[
appellant
]
was
    detained.

[10]

The trial judge did not
    confuse the test for detention in a customs context with the test for arrest. As
    already noted in the preceding paragraph, the trial judges conclusion did not
    depend solely on whether the border officer had grounds to arrest the
    appellant. The reference to grounds to arrest continued the earlier
    discussion in the trial judges reasons as to circumstances where there could
    be no doubt that if the border officer had subjectively
harboured
grounds to arrest, the appellant would have been detained.

[11]

Moreover, the trial
    judge weighed all of the evidence to determine that the border officers subjective
    belief did not rise to a particularized suspicion that the appellant may be
    involved in the illegal importation of drugs, and that this subjective belief was
    objectively reasonable in the circumstances of this case. In particular, the
    trial judge accepted the border officers testimony of his past experience that
    x-ray anomalies seen in food products often yield innocent results. The officer
    was not certain whether the anomalies in the plastic bags were due to the
    bulking of the food product, and the entire constellation of factors he was
    dealing with had not resulted in such a level of particularized suspicion to
    take his questioning out of the routine. These were conclusions open to the
    trial judge to make on the record before him.

[12]

We see no error permitting
    appellate intervention in the trial judges application of the pertinent legal
    principles or in his findings of fact.

[13]

Turning to the appeal
    from sentence, the appellant submits that the trial judge erred in imposing a
    6.5 year sentence (less 359 days of credit for pre-trial custody, for an
    effective sentence of 5 years, 6 months and 6 days). Specifically, the
    appellant says that the sentence is harsh and excessive, and the trial judge
    failed to take into account as a mitigating factor the elimination of
    accelerated parole review.

[14]

We do not accept these
    submissions.

[15]

The trial judge
    carefully considered the relevant mitigating and aggravating factors and
    imposed a sentence at the lower end of the applicable range of 6 to 8 years set
    out by this court in
R. v. Cunningham
(1996), 104 C.C.C. (3d) 542 (Ont. C.A.), at para. 20.

[16]

Moreover, the principle of parity does not mean that this court
    should depart from that well-established range. Accelerated parole review was
    abolished more than two years before the appellants arrest. We agree that
Canada
    (Attorney General)

v. Whaling
, 2014 SCC 20,
[2014] 1 S.C.R. 392,
is distinguishable. That case dealt with the constitutionality of
    the retrospective application of the abolition of early parole in relation to incarcerated
    offenders who were already serving their sentence when the
Abolition
    of Early Parole Act
, S.C. 2011, c. 11, came into force.

[17]

Accordingly,
    while we grant leave to appeal sentence, the appeals from conviction and
    sentence are dismissed
.

G.R. Strathy C.J.O.

R.G. Juriansz J.A.

L.B. Roberts J.A.

[1]
The trial judges reasons on his ruling are reported at 2016 ONSC
    2230.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Piccinini, 2018 ONCA 433

DATE: 20180507

DOCKET: C64076

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emiliana Piccinini

Appellant

Carolyne Kerr, for the appellant

Molly Flanagan, for the respondent

Heard: May 3, 2018

On appeal from the conviction entered on April 26, 2017
    and the sentence imposed on July 31, 2017 by Justice Tamarin M. Dunnet of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Emiliana Piccinini was convicted of one count of fraud over $5,000.  A
    charge of theft over $5,000 was stayed pursuant to the principles established
    in
R. v. Kienapple
, [1975] 1 S.C.R. 729.  The appellant was sentenced
    to one year in custody.  She appeals both her conviction and sentence.  At the
    conclusion of the hearing, we dismissed the appeals with reasons to follow.  We
    now provide those reasons.

[2]

The appellant worked for a civil litigation lawyer, essentially as a
    bookkeeper.  Prior to joining the lawyers practice in 2005, the appellant had
    worked as a paralegal.  During the course of her employment, the appellant was
    to be paid bi-weekly.

[3]

On February 25, 2014, the lawyer terminated the appellants employment
    after his accountant advised him that the appellant had received more
    paycheques than she was entitled to.  These overpayments had occurred in 2011,
    2012 and 2013.

[4]

The appellant contended that these additional paycheques were, in fact,
    payments due to her by the lawyer for files that she had brought into his
    practice from the time that she worked as a paralegal.  She contended that the
    lawyer had agreed to pay her 10% of monies that he earned from these files.
    The lawyer denied that there was any such arrangement.

[5]

The trial proceeded over two days.  The trial judge gave lengthy and
    detailed reasons for finding the appellant guilty of the offence. The trial
    judge found that the appellants evidence was internally inconsistent, unsupported
    by any independent evidence, unreliable, and defied common sense  she rejected
    it completely. On the other hand, she found the lawyers evidence internally
    consistent, supported by common sense and by bank records, and was unshaken on
    cross-examination.

The conviction appeal

[6]

The appellant contends that the trial judge erred in her application of
    the test set out in
R. v. W. (D.),
[1991] 1 S.C.R. 742.  In particular,
    the appellant says that the trial judge improperly compared the evidence of the
    lawyer to the appellant.  The appellant also contends that the trial judge
    reversed the onus of proof by requiring the appellant to explain contradictions
    in the evidence.

[7]

We do not see any merit in these contentions.  The trial judges reasons
    make it clear that she looked at the whole of the evidence and tested it
    against the standard of proof of beyond a reasonable doubt.  There was a direct
    contradiction between what the lawyer said the arrangements were for the appellants
    employment and what the appellant said that they were.  It was inevitable, in
    those circumstances, that the trial judge would have to contrast the evidence
    of the two witnesses.

[8]

The trial judge did not require that the appellant produce evidence.
    Rather, she found there was no independent evidence confirming the appellants evidence.
    A trial judge who points out that evidence, that might have assisted one side
    or the other, is lacking is not reversing the onus of proof.  She is simply
    acknowledging the fact that there is an absence of confirmatory evidence, one
    way or the other.  The trial judge was correct in her approach.  The onus of
    proof was not shifted from the Crown to the appellant as argued.

[9]

Further, it is not necessary for a trial judge to recount the test set
    out in
R. v. W. (D.)
as if it were some form of magical incantation.
    This was an experienced trial judge who would be well familiar with the
    principles enunciated in that case.  Indeed, she referred to the case
    specifically.  A fair reading of her reasons does not reveal any failure to
    appreciate the approach to be taken.

[10]

We
    also do not accept that there were any misapprehensions of the evidence by the
    trial judge.  Nothing alleged by the appellant rises to the level of any
    misapprehension that relates to material parts of the evidence, or plays an
    essential part of the reasoning process, or amounts to a miscarriage of
    justice:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at
    para. 93.  The fact that the appellant would have had the trial judge draw
    inferences from the evidence different from the ones that she did draw, does
    not constitute a misapprehension of the evidence.

[11]

The
    trial judges reasons when read as a whole demonstrate that she correctly and
    carefully reviewed the entirety of the evidence. She was not required  as the
    appellant seems to suggest  to carefully review each piece of evidence and
    explain its application: see
R. v. O.M.
,
2014 ONCA 503, at
    para. 28.

The sentence appeal

[12]

Finally,
    the appellant contends that the sentence of one year in custody was harsh and
    unfair.  She contends that a conditional sentence ought to have been imposed.

[13]

Sentencing
    is a profoundly subjective process.  An appellate court should only interfere
    where the sentence is clearly unreasonable (
R. v. Shropshire
, [1995] 4
    S.C.R. 227, at para. 46) or demonstrably unfit (
R. v. Lacasse
, [2015]
    3 S.C.R. 1089, at para. 44).  The trial judge again gave detailed reasons for
    her conclusion regarding sentence.  In particular, she pointed out that this
    offence involved a breach of trust, that almost $50,000 was taken; that the
    offence occurred over more than three years, and that the appellant was a
    licenced paralegal.  The trial judge also noted that the appellant had expressed
    limited remorse for her actions.

[14]

In
    terms of mitigating circumstances, the trial judge specifically considered the
    appellants brothers and fathers health.  She concluded they did not amount
    to exceptional circumstances as she was entitled to. The trial judges consideration
    of the amount of money left in the law firms account is not an error
    justifying appellate intervention.  The fresh evidence, admitted on consent, regarding
    the brothers further health issues, does not materially alter the analysis.

[15]

In
    the end result, there is no principled basis by which this court could
    interfere with the sentence imposed.

Conclusion

[16]

The
    appeal from conviction is dismissed.  While leave to appeal sentence is
    granted, that appeal is also dismissed.

H.S. LaForme
    J.A.

David Watt
    J.A.

I.V.B.
    Nordheimer J.A.