COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Searay, 2020 ONCA 726

DATE: 20201112

DOCKET: C65067

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Searay

Appellant

Adam Searay, acting in person

Janani Shanmuganathan, duty counsel

Jessica Smith Joy, for the respondent

Heard by videoconference: November 4, 2020

On appeal from the conviction entered on October 20, 2017
    and the sentence imposed on February 23, 2018 by Justice Wendy L. Harris Bentley
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mr. Searay was convicted of robbery, with a gun,
    and disguise with intent to commit an indictable offence. He was sentenced to
    six years imprisonment less credit for pre-sentence custody. He appealed
    against conviction and sentence. However, at the oral hearing of the appeal, he
    abandoned his sentence appeal, apart from his request that the victim fine be
    quashed.

[2]

For the reasons that follow, the appeal against
    conviction is dismissed.

BACKGROUND IN BRIEF

[3]

On November 12, 2015, a stolen truck was parked
    outside a Scotiabank in London, Ontario. A man in the truck was seen pulling a
    hoody over his head.  He then entered the bank, with his face covered by
    white fabric except for a space for his eyes. He was wearing blue jeans with a
    rip, light brown running shoes, and black gloves  and carrying a handgun. He
    yelled at everyone to get down as he did not wish to kill anybody that day.
    The bank surveillance video clearly showed that the robber was wearing a dark
    hoody with the hood up and that the robbers face was covered by white fabric,
    with space for his eyes.

[4]

The robber demanded money  hundreds and fifties
     shouting he did not want any dye packs. One teller got up and moved to a
    wicket where he got money and gave it to the robber. After receiving around
    $10,000, the robber ran out of the bank where he was seen climbing into the
    passenger seat. One witness was able to recall most of the license plate number
    of the truck.

[5]

The stolen truck was being driven by Kenneth
    Rowe, Mr. Searays co-accused. Mr. Rowe drove off at a high rate of speed and
    almost ran over a pedestrian as he turned into the driveway of a shopping
    plaza. The pedestrian saw the truck stop. The robber left the truck. Another
    witness saw Mr. Rowe drive further into the parking lot, almost striking
    people, and abandon the truck, taking with him a bag from the truck and walking
    away.

[6]

A police officer later used a dog to track Mr.
    Rowes movements, based on his scent in the truck. The dog tracked from the
    drivers side of the truck to a bus stop with a green garbage bin. Inside the
    bin, the officer found a pair of shoes, a screwdriver, jeans, a black hooded
    sweatshirt, and a white T-shirt (the Items). The dog continued tracking to a
    Kentucky Fried Chicken outlet where other police officers were in the process
    of arresting Mr. Rowe. The police also found a handgun under a dumpster at a
    store next to the Kentucky Fried Chicken outlet.

[7]

The Items were sent for DNA testing. Of the Items,
    only the white T-shirt had a DNA profile suitable for comparison. The DNA from
    the T-shirt showed at least three contributors. Profile 1, that of a female,
    was discovered on the areas inside the front and back neckline. Profile 2, that
    of a male, was located on the inside front-center of the T-shirt, below the
    neckline. The profiles were sent to the DNA databank and there was a hit with
    respect to Profile 2. A warrant was obtained and a blood sample provided by Mr.
    Searay. He could not be ruled out as the source of the DNA in Profile 2: the odds
    were 1 in 800-quadrillion that the DNA profile came from someone else in
    Ontario.

[8]

Mr. Searay was arrested for these offences in
    December 2015. At the time of arrest, Mr. Searay, a Caucasian, was 25 years
    old, 58 in height, weighed 170 pounds, and had a medium build and short dark
    hair. He spoke without an accent.

[9]

At the judge-alone trial, the defence conceded
    that all of the elements of the offences were made out with the exception of identity.
    Thus, the sole issue at trial was the identity of the robber.

[10]

Joseph Cooke, a drug dealer who supplied Mr.
    Searay with drugs, testified that he had a discussion with Mr. Searay before
    the robbery in which they discussed escape routes for a robbery at the bank. He
    also testified that Mr. Searay spoke with him after the robbery and was told that
    he got away with it. Mr. Cooke saw that Mr. Searay had new clothing and about
    $1,500 in crisp new bills. Mr. Cooke had a lengthy criminal record that
    included crimes of dishonesty.

[11]

Mr. Rowe testified that he was the driver during
    the robbery. His evidence matched that of many of the witnesses in terms of
    where he went after the robbery with the truck and the Items found in the
    garbage bin and under the dumpster. He testified that he committed the robbery
    with a black guy whom he had only briefly met and it was not Mr. Searay. He
    said that after being picked up in the stolen truck, he and the robber stopped
    at the trap house (the drug house) and picked up clothes for the robber to
    wear during the robbery. He said that Mr. Searay was in and out of the trap
    house on a regular basis. Mr. Rowe did not describe the person as black in his
    statement to the police. He had a close friendship with Mr. Searay.

[12]

Mr. Searay did not testify or call any evidence
    at trial.

[13]

The trial judge gave lengthy reasons explaining
    why she did not accept the evidence of Mr. Cooke and parts of Mr. Rowes
    evidence, including his unbelievable story about whom he had committed the
    robbery with and his description of that person.

[14]

Based on the descriptions of the robber given by
    the various witnesses, the trial judge found that the robber was male,
    Caucasian, between 58 and 510 in height, between 160 and 195 pounds, in his
    mid-20s, and had short dark hair and spoke without an accent. She found that description
    generally matched Mr. Searay and that it did not rule him out as the robber.

[15]

The trial judge described the DNA evidence and its
    limitations, as identified by the forensic expert. Those limitations included
    that it was not possible to determine: the mechanism or how the DNA was
    deposited on the T-shirt; whether it was deposited directly or by secondary
    transfer; or when the DNA was deposited on it.

[16]

The trial judge carefully and thoroughly explained
    how she reviewed the video surveillance of the robbery, made findings about the
    white fabric over the robbers face, its location above and below the robbers
    eyes, that it was hemmed, how it matched the white T-shirt found at the garbage
    bin at the bus stop, and why she found that the T-shirt had been positioned
    with the front part of the neck below the robbers eyes. The trial judge found
    that the white T-shirt was worn by the robber during the robbery and that Mr.
    Searays DNA was located on it in the area where the robbers nose and mouth
    were located. As the robber was a male, she excluded the female DNA, being
    Profile 1, as belonging to the robber.

[17]

The trial judge concluded that, on the whole of
    the evidence, the only rational inference that could be drawn was that Mr.
    Searay was guilty of the offences, having committed the armed robbery while
    wearing the white T-shirt around his head.

THE ISSUE

[18]

With the able assistance of duty counsel, Mr.
    Searay submits that the conviction is unreasonable. He maintains that the trial
    judge had only two pieces of evidence on which to base the conviction: the DNA
    evidence and a generic description of the bank robber. These, he contends, were
    insufficient to support the inference of guilt.

[19]

In terms of the DNA evidence, he points out that
    multiple people had access to the T-shirt and other peoples DNA was on it. Therefore,
    he says, other inferences were available and the trial judge erred in finding that
    he wore the T-shirt during the robbery. As for the description of the robber
    relied on by the trial judge, he contends it was so generic that it could not
    be afforded much weight.

ANALYSIS

[20]

We do not accept the appellants submission.

[21]

The trial judge did not base the conviction solely
    on the DNA evidence and the description of the bank robber. The other evidence
    on which she relied included:

-

the bank video surveillance;

-

the testimony of the bank teller who interacted
    with the robber and gave him the money;

-

the testimony of the witnesses who saw the
    robber outside the bank;

-

the tracking of the stolen truck from the bank
    to the point where it was abandoned;

-

the canine tracking of Mr. Rowe that led to the
    discovery of the Items and then to him;

-

the location of the stolen truck at its point of
    abandonment and of the recovered Items and handgun;

-

the close personal connection between Mr. Rowe
    and Mr. Searay;

-

those parts of Mr. Rowes testimony that she
    accepted and were confirmed by other evidence; and

-

her finding that the white T-shirt discovered in
    the garbage can was used during the robbery.

[22]

In terms of the DNA evidence, the trial judge
    fully understood and addressed the concerns that the appellant raises on this
    appeal. She was alert to the presence of DNA profiles other than that of the
    appellant and to the limitations of that evidence. However, based on her
    findings about the nature of the fabric of the white cloth covering the
    robbers face and its location on the robbers face, she concluded that the
    only rational inference was that Mr. Searay had committed the offences while
    wearing the white T-shirt around his head.

[23]

In terms of the description of the robber, as
    found by the trial judge, we do not share the appellants view that it was so
    generic it warranted little weight. The trial judge arrived at that description
    after careful consideration of the descriptions given by the various witness
    and review of the bank video surveillance. She concluded that it could not rule
    out Mr. Searay.  We agree.

[24]

The Crown relies on
R. v. Ibrahim
, 2014 ONCA 157, 318 O.A.C. 1, in which this court upheld
    convictions in a bank robbery, based on the DNA evidence in conjunction with
    the trial judges findings. We agree that the present case is similar to
Ibrahim

and that the reasoning in
Ibrahim

supports the dismissal of this appeal.

[25]

The trial judge articulated the correct legal
    principles for a circumstantial Crown case. In careful, thorough reasons, she
    explained why, on the whole of the evidence, the only rational inference that
    could be drawn was that Mr. Searay was guilty of the offences. In our view, the
    constellation of facts, as found by the trial judge, support the inescapable
    inference of guilt.

DISPOSITION

[26]

For these reasons, the conviction appeal is
    dismissed.

[27]

The sentence appeal is dismissed as abandoned. With the consent of
    the Crown, the victim fine is quashed.

E.E. Gillese
    J.A.

P. Lauwers
    J.A.

M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tremblay, 2020 ONCA 724

DATE: 20201112

DOCKET: C67704

Feldman, Simmons and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamod Tremblay

Appellant

Allison Cormie-Bowins, for the appellant

Gregory Furmaniuk, for the respondent

Heard: in writing

On appeal from the sentence imposed on October 24, 2019
    by Justice P. Robertson of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The court having been advised that the appellant has passed away, the
    appeal is dismissed as abated.

K. Feldman
    J.A.

Janet
    Simmons J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Villanti, 2020 ONCA 755

DATE: 20201130

DOCKET:
    C65741

Gillese,
    Lauwers and Benotto JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Vincent
    Villanti, Shane Smith, Ravendra Chaudhary,

David
    Prentice and Andrew Lloyd

Respondents

Michael Bernstein, for the appellant

Ravendra Chaudhary, acting in person

Paul Riley, for the respondents Vincent
    Villanti and Shane Smith

Thomas Mathews, for the respondent
    David Prentice

Geoff Haskell, for the respondent
    Andrew Lloyd

Heard: September 11, 2020 by video
    conference

On appeal from the
    stay of proceedings ordered on July 12, 2018 by Justice Bonnie L. Croll of the
    Superior Court of Justice, with reasons reported at 2018 ONSC 4259.

Lauwers J.A.:

[1]

The respondents, Vincent Villanti, Ravendra Chaudhary, Shane
    Smith, David Prentice, and Andrew Lloyd, were arrested on or around March 26,
    2014 and charged with fraud over a value of $5,000 and conspiracy to commit an
    indictable offence. The charges allege a $13 million fraud stemming from a tax
    avoidance scheme the respondents operated from 2009 to 2013.

[2]

The application judge stayed the charges against the respondents
because of unreasonable delay in their trial
under ss. 11(b)
    and 24(1) of the
Canadian Charter of Rights and Freedoms
.
    The total time between the arrests of the appellants on or about March 26, 2014
    and the projected completion date of the re-scheduled 12-week jury trial of
    April 5, 2019 would have been about 60.5 months.

[3]

The application judge calculated the net delay under
    the methodology prescribed by
R. v. Jordan
, 2016 SCC 27, [2016] 1
    S.C.R. 631. For the appellants Villanti, Lloyd and Chaudhary, she found that the
    net delay would have exceeded the presumptive ceiling of 30 months by 16 months,
    and for the appellants Smith and Prentice, by 21 months.
[1]

[4]

The Crown appeals. For the reasons set out below, I would dismiss
    the appeal.

A.

OVERVIEW

[5]

The 12-week jury trial was originally scheduled
    to begin on September 25, 2017. One month before the scheduled trial date, the
    respondents brought an application to stay the charges for unreasonable delay under
s. 11(b) of the
Charter
. OMarra J. dismissed the application for the reasons reported at 2017
    ONSC 7130. He found the time between the respondents arrest and the
    anticipated completion of the trial to be about 44 months, which exceeded by 14 months
    the
Jordan
presumptive ceiling of 30 months. However, O'Marra J. found
    that both the complexity of the case and the exception for transitional
    circumstances, as explained in
Jordan
, justified the time the case had
    taken to that point. He then granted adjournments to

Villanti,
    Lloyd, and Chaudhary, who wanted to retain counsel. The trial was rescheduled
    for February 26, 2018, five months later.

[6]

On the day the trial was set to begin, McMahon J., who leads the Superior
    Courts criminal long trial team in Toronto, advised the parties that two
    judges had just taken ill. The judge assigned to their trial had been
    reassigned to the trial of an accused who was in custody and no other judge was
    available to try the case, which McMahon J. then rescheduled to January 11,
    2019, roughly 11 months later.

[7]

The respondents applied again for a stay of proceedings under s.
    11(b) of the
Charter

due
    to unreasonable delay, which the application judge granted.

[8]

The application judge accepted that
the simultaneous
    illness of two judges was a discrete event that could amount to an exceptional
    circumstance as outlined in
Jordan
. She also agreed with OMarra J.
    that the case was complex: at para. 34.
Despite
    these findings, she did not accept that the 11-month period should be deducted to
    account for exceptional circumstances: para. 36.

B.

The Issues

[9]

The Crown submits that the 11-month delay
stems from exceptional circumstances, as considered in
Jordan

    and
that the application judge made three errors in failing
    to treat the

period of the adjournment as an
    exceptional circumstance for
Jordan
purposes:
first,

regarding the delay
    attributable to the complexity of the case; second,
regarding
    the unexpected illness of two judges as a discrete event
; and third, regarding
    the exception arising from transitional circumstances. These claimed errors comprise
    the issues that I address after setting out the general principles.

C.

Analysis

(1)

The Governing Principles

[10]

In
Jordan
, the
    Supreme Court replaced the formula in
R. v. Morin
, [1992] 1 S.C.R. 771
    for determining whether the delay in the trial of an accused breached s. 11(b)
    of the
Charter
. The court set ceilings at 18 months from the date of
    the charge to the likely date of the verdict for cases tried in provincial
    courts and 30 months for cases tried in superior court, or cases tried in
    the provincial court after a preliminary inquiry:
Jordan
, at para. 46.
[2]

[11]

Net delay that exceeds the ceilings, being total
    delay less defence delay, is presumptively unreasonable, but the Crown can
    rebut the presumption by showing the excessive delay was caused by exceptional
    circumstances:
Jordan
, at para. 68. These are circumstances that
    lie outside the Crowns control in that they are reasonably unforeseen
or
reasonably unavoidable and the Crown cannot
    reasonably remedy the delays emanating from those circumstances (emphasis in
    original):
Jordan
, at para. 69.

[12]

The categories of exceptional circumstances are
    not closed but, in general, exceptional circumstances fall under two categories:
    discrete events and particularly complex cases:
Jordan
, at para. 71.
    Discrete events include medical or family emergencies (whether on the part of
    the accused, important witnesses, counsel or the trial judge):
Jordan
,
    at para. 72. The period of delay caused by such a discrete event is subtracted
    from the net period of delay to determine whether a ceiling has been exceeded:
Jordan
, at para. 75.

[13]

This is also true for particularly complex cases
    including those in which the Crown, in the exercise of prosecutorial discretion,
    proceeds jointly against multiple co-accused, so long as it is in the interest
    of justice to do so:
Jordan
, at paras. 77, 79, and 80.

[14]

Finally,
Jordan
also established the
    transitional exceptional circumstance for charges brought before the decision
    was released. This exception is to be applied contextually when the Crown
    satisfies the court that the time the case has taken is justified based on the parties
    reasonable reliance on the law as it previously existed:
Jordan
, at
    para. 96, referring to
Morin.
The Supreme Court noted in
R. v Cody
,
    2017 SCC 31, [2017] 1 S.C.R. 659, at para. 74: Where a balancing of the
    factors under the
Morin
analysis, such as seriousness of the offence
    and prejudice, would have weighed in favour of a stay, we expect that the Crown
    will rarely, if ever, be successful in justifying the delay as a transitional
    exceptional circumstance under the
Jordan
framework.

[15]

When the possibility of a breach of the
Jordan
ceiling looms, then the Crown is required to take action to
    mitigate the problem. In order to justify a delay in excess of a
Jordan
ceiling, the Crown must show that it took reasonable available steps to avoid
    and address the problem
before
the delay exceeded
    the ceiling (emphasis in original):
Jordan
, at para. 70. The court added
    that: The Crown, we emphasize, is not required to show that the steps it took
    were ultimately successful  rather, just that it took reasonable steps in an
    attempt to avoid the delay:
Jordan
, at para. 70.

[16]

The Supreme Court affirmed its resolve that the
Jordan
ceilings be applied rigorously in
Cody
and most recently in
R. v.
    Thanabalasingham
, 2020 SCC 18.

(2)

Application of the Governing Principles

[17]

As noted, the Crown argues that the application
    judge made three errors in refusing to deduct the
11-month adjournment from
    her calculation of net delay
: first,
regarding the
    delay attributable to the complexity of the case; second,
regarding
    the unexpected illness of two judges as a discrete event
; and third, regarding
    the exception arising from transitional circumstances. I will address these in
    order.

(a)

Did the application judge err in failing to
    account for the delay attributable to the complexity of this case?

[18]

The
    application judge agreed with OMarra J. that the case was complex within the
    meaning of
Jordan
. She rejected the Crowns
    argument that there was additional complexity related to the 11-month delay
    flowing from two new initiatives by the defence, which she described as t
he potential increase in documents flowing from Mr. Prentice's third
    party records application, which would be heard and determined in advance of
    the trial, or the large number of defence witnesses proposed by Mr. Smith:

at para. 34. The Crown argues inferentially that the 12- week
    trial estimate was too short and that this should have changed the application
    judges
Jordan
calculus.

[19]

In the

application judges
view, these were not additional complexities justifying the delay. She
    noted that all of the parties were ready to proceed as of the February 2018
    trial date. She said: In my view, the 12 weeks scheduled for trial is
    sufficiently long for the trial judge to manage issues that may arise from the
    third party records or the number of potential defence witnesses
: at para. 34. In her view:
None of the new
    issues raised by the Crown in this application amount to a novel or fresh
    complexity that justify the [11-month] delay.

[20]

I
    would defer to this experienced judges assessment of the requirements of the
    case and the ability of a trial judge to take things in stride in the trial
    time provided.

[21]

The application judge
concluded, at para. 35:

the
    relevant complexity arises from the challenges in scheduling a trial of this
    length, and is inextricably linked to the discrete event of two judicial
    illnesses, to which I now turn.

(b)

Did the application judge err in failing to account
    for the delay attributable to the unexpected illness of two judges as a
    discrete event?

[22]

I first set out the application judges
    reasoning and then address the Crowns arguments.

(i)

The application judges reasoning

[23]

The application judge said, at para. 36, that
    the discrete event of two judicial illnesses could justify an adjournment for
    some 4-6 weeks or for some other modest period until a judge was available,
    noting that doing so
would be a reasonable approach,
    in accordance with the
Jordan
framework.
The
    application judge then indicated, at para. 39, that she would be prepared to deduct
    2 to 3 months for
Jordan
purposes. Therefore the range of
    reasonable time she set for the institutional response to this discrete event
    of two judicial illnesses was up to 3 months.

[24]

The application judge stated that a trial
    judges illness, as a discrete event, is distinct from the delay caused by
    scarce judicial resources: at para. 37. She added that even if the 11-month
    delay were abridged
by up to 3 months, the net delay
    for all Applicants still significantly exceeds the
Jordan
presumptive
    timeline of 30 months or 2 1/2 years:
at para. 39.

[25]

The application judge did not agree that the
    full 11-month delay could be counted as the result of exceptional circumstances
    and asserted: t
he amount of time  11 months  that
    the Crown seeks to deduct from net delay due to exceptional circumstances is
    not acceptable in this post-
Jordan
world:
at
    para. 36.

[26]

The application judge identified two causes for
    the 11-month delay that she did not fully differentiate. First, she said that
    the delay was attributable to the lack of judicial resources in Toronto.
    Second, she noted, at paras. 30 and 32, that the resource issues compelled the
    court to triage cases and give priority to those considered to be more worthy
    of trial.

[27]

In making these findings the application judge
    relied on
McMahon J.s explanation of the situation he faced as the long
    trial team leader, quoting him verbatim, at para. 37:

On January 25, 2018
: [On this occasion McMahon J. warned the parties that there might
    not be a trial judge available.] Okay, so the one thing
I
    will give people the heads up on in relation to it is with the number of judges
    they've given me for the criminal matters scheduled.
Right now, that was
    why I was hoping that other case might turn into a resolution. Quite
    practically speaking with the number of homicides, attempt murders and gun
    cases I have going, right now I do not have a trial judge to do this case. This
    will be the first case right now. That may very well change between now and
    then, but I thought in fairness to counsel, this is the first time I've had to
    say this post Jordan, but in relation to this indictment right now, unless they
    somehow give another judge or a new appointment or one of the long trials
    resolves in the next few weeks, that's where we're at...

...So,
I'll do the best
    we can...And if we could just free up four or five murder cases to help out we
    would, but I can't...

On February 26, 2018
: [The trial date] ...So
I've lost two
    criminal judges in a couple of days
and right now because of those
    medical challenges they're facing
I had to pull a judge
    off this case to deal with a person who is in custody on a six-week trial and I
    don't have anybody to replace that judge.
So it is frustrating because
    everybody should get to trial in a timely fashion...

On March 1, 2018
:
It's just the frustration of this Court with
    not having sufficient resources to do the job
, despite everybody's best
    effort.

So despite my efforts of getting an additional
    resource from another region, quite frankly, unless, as we talked about
    yesterday  I just added up, we have 44 homicides scheduled this year in
    Toronto to be tried. And we've been resolving some of them and what we've been
    doing it, but I can only do what I can do and Mr. Lockner, I'm out of, I'm out
    of options. The first time I have trial time for this is January of 2019 and
the reason for the delay would be the unavailability of this
    court to be able to provide a judge to do the case. So it's not something we've
    had to do before in a long trial, but that's where we are. We're hoping to get
    additional judges to complement. We've asked the Federal government for that.
    We don't have those. It is frustrating, but we can only do with what we got.
So...

...And I understand all the accused are ready,
    able and go to trial as is the Crown, and
the fault lies
    with myself and the Court for not providing a judge
. [Emphasis added.]

[28]

The
    application judge explained her assessment of the time needed to adjust to the
    discrete event of two simultaneous judges becoming ill, at para. 38:

There is a heavy and challenging caseload of
    criminal and other cases at the Superior Court in Toronto. Given the existing
    complement of judges, there is very little, if any, flexibility to respond to
    sudden absences. Pursuant to the
Jordan
framework, an exceptional
    circumstance is one that must be reasonably unforeseen or unavoidable. It is,
    of course, the case that the illness of any particular judge is not reasonably
    foreseeable. However, it is reasonably foreseeable that, from time to time,
    judges will be unavailable. In a system that is already experiencing enormous
    pressure, it is no surprise that such unavailability will trigger serious and
    challenging scheduling issues, especially when 12 weeks of trial time is
    required. These scheduling issues include making difficult decisions about the
    priority in which cases proceed. The delay was also avoidable had there been
    the proper judicial complement.

[29]

Drawing on McMahon J.s explanation for the long
    adjournment, the application judge stated, at para. 41: To meet the
Jordan
timetable, it is axiomatic that courts must be properly resourced with the
    appropriate complement of judges. She added that despite serious and creative
    efforts made to find a solution, resource issues prevented the court from being
    able to meet its
Jordan
obligation.

[30]

The application judge described these
    regrettably unsuccessful efforts at paras. 30-31:

The Crown looked into whether
this case could take priority over other scheduled cases
,
    and whether this case could be heard in the time slotted for cases that had
    resolved. The Crown also points to efforts made by the Court. In this regard,
    McMahon J. carefully reviewed the list of long trials scheduled for the 361
    University Avenue courthouse
to determine priority, and
    contacted two other judicial regions in the GTA to inquire whether there was
    any excess judicial capacity that could be loaned to Toronto for a 12-week trial
.
    [Emphasis added.]

(ii)

The Crowns arguments

[31]

The
    Crown makes five arguments in support of its position that the 11-month delay
    falls within the
Jordan

deductions.
    I deal with each in turn.

[32]

First,
    the Crown points to the absence of evidence to explain the application judges
    factual findings on the lack of judicial resources in Toronto.

[33]

I
    would not give effect to this argument for two reasons. First, it is the
    Crowns responsibility to adduce evidence on the reasons for delay that impinge
    on
Jordan
ceilings:
Jordan
,
    at paras. 81 and 105; and see the application judges reasons at paras. 15 and
    42.

[34]

My
    second reason for rejecting the Crowns argument on the absence of evidence is
    that Superior Court judges know how many vacancies exist in the local
    complement at any one time. This is a fact of which a judge can take judicial
    notice, as
Jordan
noted at para. 89. See also
R. v Rice,
2018 QCCA 198; 44 C.R. (7th) 83. In this case
    the application judge did not set out the number of vacancies in Toronto at the
    relevant time but she knew that there was a shortfall.

[35]

The
    Crowns second argument is that it need only demonstrate that substantial
    efforts were made to take reasonable steps to avoid and address the problem
    that arose. Compliance with s. 11(b) of the
Charter
does not require success. This argument invokes the courts statement in
Jordan
: The Crown, we emphasize, is not required to
    show that the steps it took were ultimately successful  rather, just that it
    took reasonable steps in an attempt to avoid the delay: at para. 70.

[36]

The
    application judge noted that the Crown and the court took serious and creative
    efforts  to find a solution, [but] resource issues prevented the Court from being
    able to meet its Jordan obligation. She concluded that: The delay was simply
    too long to be considered reasonable: at para. 41.

[37]

The
    Crown asserts that para. 70 of
Jordan
requires
    the case to proceed despite the lack of success in mitigating the delay.

[38]

I
    disagree. I do not read
Jordan
as making acceptable
    any delay once reasonable but unsuccessful efforts have been made by the Crown
    and by the court to get a trial heard. The Supreme Courts decision must be
    read as a whole, in light especially of the first paragraph:

Timely justice is one of the hallmarks of a
    free and democratic society. In the criminal law context, it takes on special
    significance. Section 11(b) of the
Canadian Charter of Rights and Freedoms
attests to this, in that it guarantees the right of accused persons "to be
    tried within a reasonable time".

[39]

To
    endorse the approach asserted by the Crown would foster the culture of
    complacency which
Jordan
condemned, at para.
    4, along with
Cody
, at para. 1, and
Thanabalasingham
, at para. 1.

[40]

To
    put the point plainly, I agree with the application judge that the additional
    delay was just too long
.

[41]

The
    Crowns third argument is that the application judge did not deduct a single
    day on account of exceptional circumstances in her
Jordan
calculation.
    The Crown says that some deduction is mandatory and that the application
    judges failure to do so is fatal.

[42]

I
    would not give effect to this argument. The application judge said, at paras. 36
    and 39, that she would be prepared to deduct up to three months to the discrete
    circumstance of two judges falling ill. This was nowhere near the 11 months
    that any exceptional circumstances deduction would need to overtake.

[43]

However, there is no evidence on this issue on
    which the application judge could base an estimate that the delay caused by two
    judicial illnesses should be no more than 3 months. Her estimate cannot serve
    as a norm. But I would agree with the application judge, on the basis of common
    sense and the Superior Courts decision to set the priority for this trial
    behind numerous others, that the delay caused by scarce judicial resources could
    not tolerably be permitted to consume all of, or even most of, the actual
    11-month delay.

[44]

The
    Crowns fourth argument is that prosecutions are a provincial responsibility,
    as is the operation of the superior courts in the province. The fault, if any,
    in this case, counsel asserts, lies with the federal government not the
    provincial government, and the provincial Crown is not answerable for the
    federal governments delay in increasing the judicial complement and filling
    vacancies.

[45]

I
    would not give effect to this argument because it ignores the appellants, who
    are the right-holders under the
Charter.
It
    matters not at all to the respondents or to the
Charter
which
    level of government is at fault. The only question from the
Charters
perspective is whether the delay is
    unacceptable in accordance with the
Jordan
principles. The courts focus in the analysis must be on the right-holder, not
    on the Crown:
Jordan
, para. 19.

[46]

Fifth,
    and somewhat inconsistently, the Crown argues that the federal governments
    response to
Jordan
takes time to implement and
    that includes the appointment of additional judges to the complement in Toronto
    by the federal government.

[47]

I
    would not accept this argument. The Supreme Court released its reasons in
Jordan
in July 2016. The system of justice must now live
    firmly in the post-
Jordan
world.

(c)

Did the application judge err in failing to
    account for the delay attributable to the transitional exceptional
    circumstance established in
Jordan
?

[48]

This prosecution started before the release of
Jordan
so this case is theoretically eligible for the application of the transitional
    exception. However, the application judge noted
:
The
    Crown quite properly submitted that the transitional exceptional circumstances
    have no application here, given that the delay that is the focus of this
    application occurred well after the release of
Jordan
in July 2016:

at para. 43.

[49]

The Crown now argues that the application judge
    should have found that the transitional exception justified some or all of the
    11-month delay after February 26, 2018.

[50]

I would not give effect to this argument, for two
    reasons. First, the application judge cannot be faulted for not dealing with an
    issue the Crown conceded. This court will only rarely and in circumstance where
    justice demands it consider a new issue on appeal:
Guindon v. Canada
,
    2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22. No new facts are needed to dispose
    of the issue, so I will address it briefly.

[51]

Second,
the application judges logic is correct. In this context, the
    11-month delay was the result of the sudden illness of two judges. This was a
    discrete event and cannot reasonably be rooted in any slow rhythm the parties
    might have developed in reliance on
Morin
. The Crown led no evidence
    that such reliance influenced the progress of this case past the first s. 11(b)
    application and provided no analysis or calculation of how the case would have
    progressed under
Morin
.

[52]

I note in passing that
OMarra J. made use of
    the time provided by the transitional exception in dismissing the first s.
    11(b) application. There is an argument that the transitional exception was
    entirely consumed then and should have no further application. However, it is
conceivable that some cases will remain transitional even after a
    first s. 11(b) application is decided under the transitional exception. I expect
    the number of such cases to be limited and dwindling.

[53]

Moreover, the
Morin
analysis weighs in
    favour of a stay in this case.
Under
Morin
, courts were
    required to balance
four factors:
1) the length of the delay, 2) the waiver of any time periods
    by the accused, 3) the reasons for delay, and 4) the prejudice to the
    accused. Courts considered a variety of reasons for delay, including: 1)
    inherent delay, 2) defence delay, 3) Crown delay, 4) institutional delay,
    and any other reason that did not fall into one of the established categories.

[54]

Under
Morin
, the acceptable
    ranges for institutional delay were eight to ten months in provincial
    court, and six to eight months in superior court:
Morin
,
    at pp. 798-799. Total institutional delay could generally be justified in the
    range of 14-18 months:
Thanabalasingham
, at
    para. 8.

[55]

In
    this case, the total delay at the time of the first s. 11(b) application was 44 months.
    Only short periods were waived. According to OMarra J. the reasons for delay
    could be broken down roughly as follows:

Reason for Delay

OMarra J.s Totals

Intake/Inherent Delay

14.75 months

Defence Delay

9.75 months

Institutional Delay

15 months (8.25 in OCJ and 6.75 in SCJ)

Crown Delay

4 months

[56]

OMarra
    J. calculated the institutional delay at roughly 15 months, comprised of 7.5
    months in the Ontario Court of Justice and 6.75 months in the Superior Court of
    Justice. To this he added four months of Crown delay. Faced with that result,
    OMarra J. was right to apply the transitional exception, particularly in light
    of the complexity of the case. At that point, the case was generally within
Morin
guidelines.

[57]

However,
    by the time of the second s. 11(b) application, the total delay had reached 60.5
    months and institutional delay had reached 26 months. Once the four months
    of Crown delay were taken into account, this case would have exceeded the
Morin
guidelines for combined Crown and institutional
    delay by 12 months.

[58]

The
    final consideration in
Morin
is the balance
    between prejudice to the accused and the societal interest in the adjudication
    of the case on its merits. Here, the respondents have not suffered actual
    prejudice to their liberty, security of the person, or fair trial rights, but
    the long delay in these proceedings gives rise to a strong inference of
    prejudice:
R. v. Godin
, 2009 SCC 26, [2009] 2
    S.C.R. 3, at para. 31;
R. v. J.C.P.
, 2018 ONCA
    986. The affidavits filed with the application judge describe stress, anxiety,
    lost employment opportunities, legal fees, and uncertainty about the future.
    While there is a strong societal interest in the adjudication of this case on
    its merits given the scope of the alleged fraud, the delay is not acceptable.

[59]

I conclude that the
Morin
analysis weighs in favour of a stay, not a further justification of the delay under
    the
Jordan
exception for transitional
    circumstances. To repeat the Supreme Courts words
: Where a
    balancing of the factors under the
Morin
analysis, such as seriousness
    of the offence and prejudice, would have weighed in favour of a stay, we expect
    that the Crown will rarely, if ever, be successful in justifying the delay as a
    transitional exceptional circumstance under the
Jordan
framework:

Cody
, at
    para. 74. This is not one of those rare cases.

D.

Disposition

[60]

I
    would dismiss the appeal for these reasons.

Released: E.E.G. November 30, 2020

P.
    Lauwers J.A.

I
    agree.
E.E. Gillese J.A.

I
    agree. M.L. Benotto J.A.

[1]

The difference arose because Villanti,
    Lloyd and Chaudhary were granted a five-month adjournment to retain counsel,
    which the application judge counted as defence delay for the purposes of their
    individual
Jordan
calculations.

[2]
In this court, see
R. v. Jurkus
,
    2018 ONCA 489, 363 C.C.C. (3d) 246;
R. v.
    Gopie
, 2017 ONCA 728, 140 O.R. (3d) 171;
R. v. Coulter
, 2016 ONCA 704, 133 O.R.
    (3d) 433; and
R. v. Manasseri
, 2016
    ONCA 703, 132 O.R. (3d) 401, leave to appeal to SCC refused, 37322 (April 13,
    2017).


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. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of the
Criminal
    Code
provide:

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

(a)     any of the
    following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Watkins, 2020 ONCA 754

DATE: 20201127

DOCKET: C64562

Gillese, Lauwers and Benotto
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Anthony Watkins

Appellant

Mark
    Anthony Watkins, acting in person

Joe
    Wilkinson, appearing as duty counsel

Michael
    Fawcett, for the respondent

Heard:
    November 3, 2020 by video conference

On appeal from the conviction entered on
    August 21, 2017 and the sentence imposed on October 17, 2017 by Justice Ferhan
    Javed of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mark Watkins was tried on a seven-count information
    alleging the following criminal offences involving his ex-partner, the
    complainant:

1.

fail to comply with undertaking;

2.

assault on or about July 28, 2016;

3.

sexual assault on or about July 28, 2016;

4.

sexual assault on or about July 27, 2016;

5.

uttering threats on or between March 1-31, 2016;

6.

uttering threats on or between May 1-31, 2016;
    and

7.

uttering threats on July 27, 2016.

[2]

The appellant pleaded guilty to count one, admitting
    that he had given an undertaking not to consume alcohol and breached it by
    consuming alcohol on July 29, 2016 when he was arrested by the police. The
    appellant testified and denied making any of the threats or committing the
    assault with which he was charged. He admitted having sex with the complainant
    on the dates of the alleged assaults but said that the sex was consensual.

[3]

On
August 21, 2017 the
    trial judge rendered an oral judgment setting out his key findings of fact and
    explaining why he concluded that the Crown had proven Mr. Watkins guilt beyond
    a reasonable doubt on all counts except count two  an assault on July 28, 2016
     and count six  uttering a threat in May 2016. He delivered written reasons for
    conviction and sentence on October 17, 2017.

[4]

The trial judges key findings of fact were
    these:

1)

He rejected the appellants evidence that his
    relationship with the complainant was good. He found that this was a
    relationship with long-term verbal and emotional abuse.

2)

He rejected the appellants evidence relating to
    his alcohol consumption.

3)

He found that the appellant was aware that the
    relationship with the complainant was over but that the appellant refused to
    accept this fact.

4)

He accepted the complainants evidence that the appellants
    threat to her in March 2016 (count five) was clear and specific and was meant
    to intimidate her.

5)

He accepted the complainants evidence about the
    words the appellant used when he threatened her in May 2016 (count six) but did
    not find that the threat intimidated her on that occasion.

6)

He accepted the complainants evidence that she
    did not consent to sexual activity with the appellant on July 27 and 28 (counts
    three and four), and that the complainant had communicated her lack of consent
    to the appellant. He also found that the appellants sexual assault on July 27
    was preceded by a threat, which was meant to and did intimidate her (count seven).

[5]

The appellant makes two arguments in his notice
    of appeal. The first is that the trial judge misapprehended the evidence. The
    second, in a supplementary notice of appeal, is that he had ineffective
    assistance of counsel.

[6]

Duty counsel adds another ground. He submits that
    the trial Crown improperly cross-examined the appellant on the conduct on which
    his previous convictions were based. Although s. 12(1) of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, authorizes a witness to be questioned
    on whether the witness has been convicted of any offence, courts have limited this
    type of questioning to the facts of the conviction, including the offence, the
    date and the place of the conviction, and the punishment imposed:
R. v. M.C.
,
    2019 ONCA 502, 376 C.C.C. (3d) 81,
per
Watt J.A., at paras. 53-55.

[7]

The respondent concedes that the trial Crown
    went too far in exploring the details of the conduct underlying the appellants
    prior convictions in cross-examination. However, the respondent submits that
    careful examination of the trial judges reasons establish that trial fairness
    was not impaired and that this was the sort of error for which use of the
    proviso would be warranted.

[8]

In this case the criminal record was put into
    evidence by defence counsel. The copy ultimately filed with the trial judge as
    an exhibit had the trial Crowns handwritten annotations on it describing what
    the individual offences were about. Duty counsel does not fault trial defence
    counsel for introducing this evidence because the record was bound to be put to
    the appellant in cross-examination, making it good trial strategy to minimize
    its effect by getting it out early. However, duty counsel argues that the
    cumulative effect of the Crowns improper cross-examination was to substantiate
    the appellants problems with alcohol, his history of domestic violence, his
    tendency to minimize his own behaviour and to lie to courts in order to
    minimize the personal consequences of his actions. Duty counsel argues that
    this tainted the trial judges assessment of the appellants credibility,
    encouraged prejudicial reasoning on the trial judges part, and therefore led
    to a miscarriage of justice.

[9]

We do not accept this argument. While we agree
    that the Crowns cross-examination on the appellants record was improper, we
    do not agree that it unduly influenced the trial judges approach to the case.

[10]

The trial judge instructed himself appropriately
    on the burden of proof, citing
R. v. Lifchus
, [1997] 3 S.C.R. 320, at
    para. 27. He did the same respecting the principles set out in
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, at pp. 757-8. He instructed himself that demeanor evidence
    was an unreliable factor in the assessment of credibility and not to give it
    undue weight.

[11]

The trial judge was alive to the tensions in the
    law. First, he cited the observation of Doherty J.A. that: The existence of
    previous criminal convictions may render a witness less credible:
R. v.
    Watson
(1996), 108 C.C.C. (3d) 310, at p. 334, [1996] O.J. No. 2695 (C.A.)
    at para. 76. Second, the trial judge was careful in instructing himself that:
    While I can rely on his record, I cannot use it to infer propensity to commit
    the offences before the court, citing
R. v. Corbett
, [1988] 1 S.C.R.
    670 at para. 21.

[12]

The trial judge enumerated briefly the 20
    convictions on the appellants record. In his analysis of the issues at trial,
    the trial judge returned to the criminal record, and made these observations:

First, he minimized his criminal record. Mr.
    Watkins has a lengthy criminal record with convictions for crimes of violence.
    Some are driving-related which involve alcohol. Arguably, this cannot be an
    easy thing to be questioned on, and one would expect some downplaying, but Mr. Watkins
    refused to acknowledge his role in his criminal antecedents. He testified that
    most of the times he pled guilty to get out of jail. In cross-examination, he
    was given an opportunity to explain what he meant. When it was suggested to him
    that this meant he might have lied to the court (if he was not guilty of the
    offences) just to get out of jail, he did not correct or explain this
    assertion. He remained adamant he just wanted to get out of jail, implying he
    was not really guilty of the offences. This is problematic.

[13]

The third tension in the law concerns propensity
    reasoning. The trial judge noted that in cases involving domestic
    relationships, extrinsic evidence can be led not for propensity reasoning but
    in order to provide context to the relationship, particularly where it can
    explain why a person remains in an abusive relationship:
R. v. F.(D.S.)
(1999), 132 C.C.C. (3d) 97 (Ont. C.A.), [1999] O.J. No. 688.

[14]

The trial judge then said:

The extrinsic evidence led by the Crown was
    limited to the other counts on the information and instances of verbal and
    emotional abuse. It is entirely relevant to explain why [the complainant]
    remained in the relationship, which of course is being challenged by the
    defence as a key issue which speaks against her credibility.

I accept the evidence of [the complainant] as
    to why she stayed in the relationship. In contrast, I reject Mr. Watkins
    characterization of their relationship as good [The complainant] testified
    that the relationship was emotionally and verbally abusive and this was a
    longstanding issue.

[15]

The case turned on the trial judges credibility
    findings. He did not believe the appellant, pointing out that there were
    several areas of his evidence that were internally inconsistent and also
    inconsistent with his prior statements, including his statements to the police.
    He noted that the appellant tried to minimize his lengthy criminal record and
    minimized his alcohol consumption.

[16]

By contrast, the trial judge found the
    complainant to be forthright and consistent in her evidence. He accepted her
    evidence that the appellants drinking was excessive and that when he abused alcohol,
    he became angry and disruptive. The complainants sister provided corroborative
    evidence that she had to take the step of banning him from her home.

[17]

In assessing the complainants credibility, the
    trial judge found that she had no motive to fabricate relating to the
    termination of their domestic relationship nor, more specifically, in order to
    gain an advantage in the division of their assets. He found that their
    confrontation on the division of assets occurred after the assaults.

[18]

The trial judges self instructions were
    thoughtful, correct, and complete, and his reasons were comprehensive and
    detailed. The appellant has demonstrated no palpable and overriding errors or
    misapprehensions of the evidence by the trial judge. Nor are there any errors
    of law.

[19]

The appellant made submissions in addition to
    duty counsel and elaborated on the argument set out in a supplementary notice
    of appeal that his trial counsel provided ineffective assistance. The appellant
    had in 2018 obtained a limited order under s. 684 of the
Criminal Code
for assistance and a review of this claim, but no counsel is before the court
    making this argument.

[20]

With respect to the fresh evidence relating to
    the ineffective assistance of counsel claim, the appellant makes four
    allegations:

1)

Trial counsel failed to do an effective cross-examination on the
    complainant and her sister;

2)

Trial counsel undermined the fairness and the
    appearance of representation of the trial and the reliability of the outcome of
    the verdict;

3)

Trial counsels conduct of incompetence and
    ineffectiveness is the cause for a miscarriage of justice which in turn
    affected the verdict; and

4)

Trial counsel failed to hear my side of these
    allegations and events which is required by law to do so. Trial counsel [failed
    to inform me of these allegations at any time and did not discuss any
    strategies].

[21]

These allegations were refined further in
    communications between the Crown and trial counsel. The Crown invited trial
    counsel to respond to the following allegations:

1)

The videotape statement  Mr. Watkins alleges that you did not view
    his videotaped statement to police before conceding its voluntariness.

2)

The allegations  Mr. Watkins states that you
    did not review the allegations with him, and he did not know the nature of the
    case against him.

3)

Trial preparation  Mr. Watkins alleges that you
    never discussed trial strategy with him; did not ask his side of the story; and
    never explained to him what would happen when he took the stand.

[22]

In response, trial counsel advised:

1)

I did review the video statement of Mr. Watkins but, I did not view
    the video with Mr. Watkins himself. I told him I had reviewed it and confirmed
    that it was similar to the written synopsis that the Crown had provided in the
    disclosure. I reviewed that with him and he recalled what he said to police. He
    was fine with what he had told police and did not express any issues with that
    aspect of his evidence.

2)

I reviewed all allegations with Mr. Watkins. I
    read out the disclosure to him over the videolink meetings we had in
    preparation for trial. He knew exactly what the allegations were against him
    and he is the one that gave me the background of the relationship in order to
    cross-examine the complainant.

3)

I always discussed trial strategy with Mr.
    Watkins. We discussed whether he wanted to take the stand. We discussed how we
    would cross-examine the complainant and the fact that her sister would also be
    testifying. I went over their statements with Mr. Watkins and he gave me
    the history to cross-examine the witnesses and his side of the story. I was
    fully aware of Mr. Watkins version of events. He told me several times what his
    position was and I tried to place that before his Honour as best I could. I
    also discussed with him what it meant to take the stand. He seemed to be fully
    prepared to answer questions from the Crown. When I discussed my expectation,
    he seemed to understand. At least, he led me to believe he understood and was
    still prepared to take the stand so the Judge had his side of the story.

[23]

In his oral submissions before this court, the
    appellant focussed on the complaint that defence counsel had put his criminal
    record into issue, and that he was not prepared for the questions that counsel
    asked. As duty counsel pointed out, defence counsel cannot be faulted for
    adducing the appellants record. We addressed the problems with the cross-examination
    on the record earlier but note that defence counsel did not object to it.

[24]

On this record, with the substantial evidence
    against the appellant, we are unable to find that defence counsel provided him
    with ineffective assistance.

[25]

The notice of appeal included a sentence appeal
    but did not set out the grounds. Neither the appellant nor duty counsel
    addressed the sentence appeal, nor did they abandon it. Since leave to appeal
    sentence was not pursued, leave to appeal sentence is denied.

[26]

The appeal is dismissed.

E.E.
    Gillese J.A.

P.
    Lauwers J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Skof v. Bordeleau, 2020 ONCA 729

DATE: 20201117

DOCKET: C67874

Huscroft, Nordheimer and Harvison Young JJ.A.

BETWEEN

Matthew Skof
and
    Ottawa Police Association

Plaintiffs/Responding
    Parties

(
Appellant
)

and

Charles Bordeleau and
    Ottawa Police Services Board

Defendants/Moving
    Parties

(Respondents)

Paul Champ, for the appellant

Ronald F. Caza and Marie-Pier Dupont, for the respondents

Heard: October 23, 2020 by video conference

On appeal from the order of Justice Marc R. Labrosse of
    the Superior Court of Justice, dated December 20, 2019, with reasons reported
    at 2019 ONSC 7418.

Nordheimer J.A.:

[1]

Matthew Skof appeals from the order of the motion judge that dismissed
    his action under r. 21.01(3)(a) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, on the basis that the Superior Court of Justice did not
    have jurisdiction over the subject matter of the action. For the following
    reasons, I would allow the appeal, set aside the order below, and reinstate the
    appellants action.
[1]

I: Background

[2]

The appellant is a police officer with the Ottawa Police Service. He is
    also the President of the Ottawa Police Association (OPA) and has been since
    he was elected to that position on December 15, 2011.

[3]

On January 23, 2019, the Ontario Provincial Police (OPP) charged the
    appellant with certain offences under the
Criminal Code
. The OPP
    investigation was prompted by a written request from the respondent,
Charles Bordeleau, who was then the
Chief of
    Police of the Ottawa Police Service. On that same day, Bordeleau suspended the
    appellant pursuant to his authority under s. 89 of the
Police Services Act
,
    R.S.O. 1990, c. P. 15 (
PSA
).

[4]

The appellant, along with the OPA, commenced an action on March 22, 2019
    against the respondents. In that action, the plaintiffs claim declaratory
    relief, injunctive relief, and damages arising both from alleged breaches of
    the appellants
Charter
rights and also from an alleged misfeasance in
    public office by Bordeleau. Central to the issues in the action are the
    allegations that the actions of Bordeleau, in suspending the appellant, interfere
    with his ability to represent and assist the OPA and its members in a variety
    of ways, including collective bargaining, discipline, and grievance matters. It
    is also alleged that the suspension was motivated by improper purposes arising
    from a long history of animosity between the appellant and Bordeleau. It is
    further alleged that the actions of Bordeleau have undermined the appellants
    reputation.

[5]

The respondents brought a motion to dismiss the action on the basis that
    the Superior Court of Justice does not have jurisdiction to entertain the
    claim. They assert that the issues raised are ones for determination under the
    collective agreement. Alternatively, the respondents say that the appellant had
    to seek relief under the
PSA
, or by way of judicial review. The motion
    judge agreed. He found, at para. 50:

Consequently, in any of these scenarios, the Superior Court
    does not have jurisdiction over the dispute and it is not for this Court to
    determine the proper venue for the dispute other than by making a determination
    that it is not by way of this Statement of Claim as drafted. The Plaintiff's
    claim is therefore dismissed.

[6]

It appears that the motion judges finding that the appellant continued
    to be an employee of the Ottawa Police Service, during his secondment to the OPA,
    weighed heavily in the conclusion that he reached. Although the appellant does
    not dispute that he continued to be an employee, he submits that that fact does
    not inevitably lead to the conclusion that the motion judge reached.

II: The test under r. 21.01(3)(a)

[7]

Because the parties raise the issue, I will briefly address the
    appropriate test to be applied when deciding a motion under r. 21.01(3)(a) of
    the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194.

[8]

The basic proposition applicable to r. 21.01(3)(a) can be stated fairly
    simply: either the Superior Court of Justice has jurisdiction over a claim or
    it does not. In deciding that issue, it must be remembered that the Superior
    Court of Justice, as a court of inherent jurisdiction, has jurisdiction over
    every conceivable claim unless (i) the claim does not disclose a reasonable
    cause of action or (ii) the jurisdiction has been removed by legislation or by
    an arbitral agreement:
TeleZone Inc. v. Canada (Attorney General)
,
2008 ONCA 892, 94 O.R. (3d) 19, at para. 92, affd 2010 SCC 62, [2010] 3 S.C.R.
    585.

[9]

Some prior authorities have debated whether it is appropriate to use the
    plain and obvious test under r. 21.01(3)(a). I do not think it is helpful to further
    that debate. It is clear that, in order to find that the Superior Court of
    Justice does not have jurisdiction to entertain a claim, it must be clear and
    unequivocal that the jurisdiction has been ousted:
TeleZone
, at para.
    92. Unfortunately, the motion judge does not appear to have approached the
    motion before him with that principle in mind.

III: The collective agreement

[10]

It
    is clear from the material filed in the record that, once the appellant was
    elected as President of the OPA, he was no longer subject to the collective
    agreement that otherwise governs all employees of the Ottawa Police Service. The
    collective agreement contains an express provision dealing with the status of
    officers who become executive officers of the OPA. Those officers are given a
    leave of absence from their duties as employees during their time with the OPA.

[11]

In
    conformity with that provision, when the appellant became the President of the
    OPA, the OPA and the Ottawa Police Service signed a Memorandum of Agreement which
    provided, among other things, that aside from benefits, the collective
    agreement did not apply to the appellant during his time with the OPA. More
    specifically, clause 4 of that Memorandum of Agreement stated:

Aside from the Agreement provisions mentioned specifically in
    3, above, all other provisions of the Agreement shall not apply to Mr. Skof
    during his secondment.

[12]

The
    motion judge found that the Memorandum of Agreement, and Article 21 of the
    collective agreement, were in conflict. I do not agree that there is any such conflict.
    Article 21 provides for leaves of absence of up to three officers to be
    full-time executive officers for the OPA. It also provides that the OPA must
    reimburse the employer for costs associated with those leaves of absence,
    including salaries and benefits for the three officers. Finally, Article 21
    provides that those employees are not subject to discipline under the
    collective agreement for duties relating to their activities on behalf of the
    OPA.

[13]

The
    Memorandum of Agreement is consistent with Article 21, not in conflict with it.
    Indeed, the Memorandum of Agreement makes it even clearer that the collective
    agreement does not apply to the appellant in any respect, other than his salary
    and benefits.

[14]

The
    result is that, while the appellant technically remained an employee of the
    Ottawa Police Service, he was expressly not subject to the collective
    agreement. He cannot, consequently, invoke the grievance procedure under the
    collective agreement to address his suspension, assuming that he would
    otherwise have had the right to do so. I should note that, although the
    appellant did, in fact, file a grievance at one point, I am satisfied that this
    was done out of an abundance of caution in case a contrary conclusion was ever
    reached. That fact does not impact on the proper interpretation of the
    contractual arrangements between the parties.

[15]

The
    respondents attempt to avoid this result by contending that the essential
    character of the claim is one covered by the collective agreement. They seek
    to invoke the principles established in
Weber v. Ontario Hydro
, [1995]
    2 S.C.R. 929, to bring the appellants claim within the collective agreement.

[16]

I
    have already set out why the collective agreement does not have any application
    to this case, the principal reason being that the parties agreed that it would
    not. I would also note that McLachlin J. made it clear in
Weber
, at
    para. 67, that the exclusive jurisdiction of the arbitrator is subject to the
    residual discretionary power of courts of inherent jurisdiction to grant
    remedies not possessed by the statutory tribunal. This point was reiterated in
Piko v. Hudson's Bay Co.
(1998), 167 D.L.R. (4th) 479 (Ont. C.A.),
    leave to appeal refused, [1999] S.C.C.A. No. 23, where Laskin J.A. said, at
    para. 11:

Some disputes between employers and employees may not arise
    under the collective agreement; others may call for a remedy that the
    arbitrator has no power to grant. The courts may legitimately take jurisdiction
    over these disputes.

[17]

In
    any event, I do not agree with the respondents that the essential character of
    the claim is related to the employment relationship. To the contrary, the
    essential character of the claim relates to disciplinary action taken by
    Bordeleau under his authority as Chief of Police. In
Regina Police Assn.
    Inc. v. Regina (City) Board of Police Commissioners
, 2000 SCC 14, [2000] 1
    S.C.R. 360, Bastarache J. explained that just because a person is an employee
    does not
per

se
bring a given dispute within the
    collective agreement. Rather, if the dispute arises out of disciplinary action
    in a regulatory context, the dispute does not fall within the collective
    agreement or the jurisdiction of an arbitrator. In this case, as was the case
    in
Regina Police Assn. Inc.
,
it is clear that the Legislature
    intended that matters of discipline would be governed by the
PSA
, as I
    shall explain.
[2]

IV: The
Police Services Act

[18]

By
    virtue of s. 126 of the
PSA
, collective agreements between police services
    in Ontario and their employees are not entitled to address the statutory complaints
    system under Part V of the
PSA
, which includes the suspension power
    under s. 89. Consequently, the grievance procedure under the collective
    agreement could not have been used to challenge a suspension made under s. 89
    of the
PSA
. That conclusion raises the issue of what remedy was then
    open to the appellant to challenge his suspension.

[19]

The
    motion judge found, as an alternative route to the collective agreement, that
    the appellant may fall under Part V of the
PSA
 but he did not
    identify how that fact provided any remedy to the appellant. There is no
    provision in the
PSA
that permits an officer to challenge a suspension
    ordered by a Chief of Police under s. 89. Notwithstanding that fact, the
    respondents maintain that the appellant could have sought relief from the Ontario
    Civilian Police Commission under Part V. However, they are unable to point to
    any provision in the
PSA
that would authorize the Commission to
    undertake such a review. Indeed, in the only decision of the Commission that
    the parties provided to us on this point, the Commission concluded that a
    suspension is not a penalty over which it has appellate jurisdiction.
[3]

[20]

Consequently,
    the only remedy for a police officer who asserts that s/he has been subject to
    a suspension that is unlawful is to seek relief through the court process. That
    then raises the question as to the proper forum for seeking relief from the
    courts, i.e., can the appellant institute an action in the normal course or
    must he seek judicial review of the suspension decision, on the basis that the
    suspension power represents a statutory power of decision as defined in the
Judicial
    Review Procedure Act
, R.S.O. 1990, c. J.1.

V: Judicial Review

[21]

On
    this point, the motion judge appears to have been of the view that the issues
    here could be addressed only by judicial review. As result, in his view, the
    appellant was not entitled to bring an action for such relief but, rather, had
    to pursue an application for judicial review to the Divisional Court. This led
    the motion judge to strike out the appellants action.

[22]

With
    respect, the motion judge erred in so concluding. Assuming that the appellants
    action constitutes a claim for judicial review, there is nothing in the
Judicial
    Review Procedure Act
that precludes an aggrieved party from seeking relief
    by way of an action. Indeed, the
Judicial Review Procedure Act
contemplates that very possibility because it refers, in s. 8, to actions that
    seek relief in the nature of judicial review, and provides that a judge of the
    Superior Court of Justice can deal with such actions summarily, or can treat
    the action as an application for judicial review and refer it to the Divisional
    Court. I would note, on this point, that one reason why an aggrieved party
    might choose to bring an action, as opposed to an application for judicial
    review, is that in the former, unlike the latter, damages can be sought.

[23]

In
    any event, the appellants action is not simply an action for judicial review. It
    is an action for different heads of relief including claims for damages for
Charter
breaches and for misfeasance in public office. In fact, read generously, the
    statement of claim appears to call into question whether Bordeleau had
    authority to use s. 89 to suspend the appellant, given his position. Put
    another way, it is an arguable question whether the appellant is a police
    officer to whom s. 89 applies.

[24]

The
    end result is that it is not clear and unequivocal that the Superior Court of
    Justice does not have jurisdiction to entertain the appellants action for the
    relief that he seeks, given his circumstances and position, and the nature of
    his claims. The motion judge erred in concluding otherwise.

VI: Conclusion

[25]

The
    appeal is allowed, the order below is set aside, and the action is reinstated
    as it relates to the appellant. The appellant is entitled to his costs of the
    appeal fixed in the agreed amount of $14,000, inclusive of disbursements and
    HST. In addition, as also agreed between the parties, the costs award made by
    the motion judge is reversed to now be in favour of the appellant.

Released: GH   November 17, 2020

I.V.B. Nordheimer
    J.A.
I agree. Grant Huscroft J.A.
I agree. Harvison Young J.A.

[1]

The Ottawa Police Association did not appeal from the motion
    judges decision. The action remains dismissed with respect to it.

[2]
See also
Rukavina v. Ottawa (City) Police
    Services Board
,
2020 ONCA 533.

[3]

Herridge v St. Thomas Police Service
, 2007 ONCPC 5