COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shaikh, 2019 ONCA 895

DATE: 20191113

DOCKET:
C64925

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Daniyal Shaikh

Appellant

Ian R. Smith, for the appellant

Katie Doherty, for the respondent

Heard: October 7, 2019

On appeal from the conviction entered on May 17, 2017 by
    Justice Marcella Henschel of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1]

Muhammad Daniyal Shaikh appeals his convictions on serious charges
    arising out of a confrontation he had with a man alleged to have sexually
    assaulted Ms. Jawairia Amer, his former common law partner. The Crown proved to
    the satisfaction of a trial judge that on October 4, 2014, Mr. Shaikh
    threatened the man with a handgun and then robbed him by taking his cellphone.
    Accordingly, Mr. Shaikh was convicted of robbery with a firearm, contrary to
Criminal
    Code
, s. 344(1); uttering a death threat contrary to
Criminal Code
,
    s. 264.1; and carrying a concealed weapon, a handgun, contrary to
Criminal
    Code
, s. 90(1). He received a global sentence of five years incarceration,
    less time served. A charge of pointing a firearm at another person contrary to
Criminal
    Code,
s. 87(2), for which Mr. Shaikh was also found guilty, was stayed to avoid
    double jeopardy.

[2]

In the course of the proceedings, Mr. Shaikh brought two
Charter
applications
    pursuant to s. 11(b) to have the charges against him stayed for unreasonable
    delay. The first application was heard by an application judge before the trial.
    The second application was brought before the trial judge, after the trial
    judge rendered her decision on the merits, and while Mr. Shaikh was awaiting
    sentence.

[3]

Mr. Shaikhs only ground of appeal is that both judges erred in denying
    his s. 11(b) applications to stay his prosecution for unreasonable delay.

[4]

For reasons that follow, I would allow Mr. Shaikhs appeal, based on
    errors committed by the application judge. The s. 11(b) application should have
    been granted, and the proceedings stayed. I would set aside Mr. Shaikhs
    convictions and the finding of guilt contrary to s. 87(2) of the
Criminal Code
and stay the proceedings against him.

[5]

It will assist in understanding the material facts and issues in this appeal
    if I provide, at the outset, a brief overview of the legal tests to be used in
    determining whether the delay in prosecuting charges has been unreasonable,
    contrary to s. 11(b). The analytical framework to be applied was established in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, and helpfully synthesized
    in
R. v. Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 32, 34-40,
    which I summarize here.

[6]

The initial step in the
Jordan
framework is to calculate the
    total delay, the period from the charge to the actual or anticipated end of
    trial. Then defence delay is identified and calculated. The entire defence
    delay is then subtracted from the total delay to identify the net delay.
    If the net delay exceeds the presumptive ceilings identified in
Jordan
of 18 months for cases going to trial in the provincial court or 30 months for
    cases going to trial in the superior court or in the provincial court after a
    preliminary inquiry, the delay is presumptively unreasonable.

[7]

To rebut that presumption, the Crown must establish exceptional
    circumstances. In general, exceptional circumstances will be established in
    two ways.

[8]

First, the Crown may show that discrete events have occurred due to unforeseeable
    circumstances. If deducting the delay caused by discrete events from the net
    delay produces a remaining delay that is below the relevant presumptive
    ceiling, the delay in prosecuting the charges is presumed to be reasonable.

[9]

Or, the Crown may satisfy the court that the case is particularly
    complex such that the time the case has taken is justified.

[10]

In
    transitional cases, where the charge was laid before
Jordan
was decided on
    July 8, 2016, but where the actual or anticipated end of the trial falls after
    that date, a transitional exceptional circumstance will apply if 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.

[11]

The
    issues that must be resolved in this appeal include whether the 18-month or the
    30-month presumptive ceiling should apply where, before a scheduled preliminary
    inquiry is completed, the accused re-elects to be tried in the provincial
    court.

[12]

This
    appeal also raises case specific issues relating to the proper identification
    of the defence delay, whether a period of delay resulting from a Crown
    requested adjournment is a discrete event, and whether the delay in this case is
    justifiable under the transitional exceptional circumstance. It is therefore
    necessary to set out the material facts in some detail.

MATERIAL FACTS

[13]

On
    October 6, 2014, Mr. Shaikh was charged with the offences for which he was
    convicted, as well as other related offences. Ms. Amer, who was present when he
    threatened the victim with a gun, was also charged on the same information.

[14]

After
    being released on bail, Ms. Amer absconded, leaving the jurisdiction. A bench
    warrant was issued for her arrest. Matters nonetheless proceeded against Mr.
    Shaikh.

[15]

After
    the first pretrial, February 24, 2015, the Crown advised the assignment court
    justice that a further pretrial was required, as the Crown needed to speak to
    [his] boss about a potential resolution. The matter was put over again so that
    the Crown could arrange to have a new information drafted. Mr. Shaikhs counsel
    also required time to prepare and get instructions because new disclosure had
    been received.

[16]

By
    May 1, 2015, Mr. Shaikh had received material disclosure and the second judicial
    pretrial was completed.

[17]

On
    that date, May 1, 2015, a four-day preliminary inquiry was scheduled. Initially
    Mr. Shaikh was offered dates commencing on January 18, 2016, but declined those
    dates because his counsel was not available until March. The next available
    dates of March 7-10, 2016 were set.

[18]

On
    January 4, 2016, eight months after the preliminary inquiry dates were set, the
    Crown sought and obtained an adjournment of the preliminary inquiry. The basis
    for the adjournment was that the complainant had prepaid air fare for a trip
    out of the country that would overlap with the March preliminary inquiry dates.
    The Crown did not attempt to preserve any of the March dates to call other
    witnesses. Mr. Shaikh consented to the adjournment but did not waive his s.
    11(b) rights. The preliminary inquiry was rescheduled for October 4-7, 2016.

[19]

On
    June 27, 2016, Ms. Amer appeared at a bail hearing, having been arrested upon
    her return to the jurisdiction.

[20]

When
    the first date of the scheduled preliminary inquiry arrived, October 4, 2016, Ms.
    Amer appeared without counsel. The Crown withdrew the charges against her. The
    matter could not proceed against Mr. Shaikh because the court could not
    accommodate the case.

[21]

Again,
    on October 5, 2016, the court could not accommodate the scheduled preliminary
    inquiry.

[22]

Once
    again, on the morning of October 6, 2016, the court could not accommodate the
    scheduled preliminary inquiry. It was only on the afternoon of October 6, 2016,
    the third of four days set for the preliminary inquiry, that the court was in
    position to commence. It did not.

[23]

Here
    is what happened on October 6, 2016. Counsel for Mr. Shaikh brought an
    application to get off the record. In his view, Mr. Shaikh was not
    communicating with him and had lost faith in him, and he was unable to get
    instructions. After Mr. Shaikh told the preliminary inquiry judge that he had
    not lost faith in his counsel and wanted to proceed, counsels application to
    get off the record was denied. However, the preliminary inquiry judge put the
    matter over until the next day to permit counsel to prepare to deal with an
    unexpected change in circumstances, specifically, the Crowns withdrawal of charges
    against Ms. Amer, and its expressed intention to call her as a witness at the
    trial. As a result, defence counsel needed time to determine whether to call
    her as a witness at the preliminary inquiry and how to proceed.

[24]

The
    preliminary inquiry judge commented when adjourning the preliminary inquiry, [t]his
    matter is not going to finish tomorrow, given the number of witnesses.

[25]

Before
    the matter was adjourned, the prosecuting Crown explained to the preliminary
    inquiry judge his reasons for withdrawing the charge against Ms. Amer. I will
    recount those reasons later, where they bear upon the issues in this appeal.

[26]

On
    October 7, 2016, the last day of the scheduled preliminary inquiry, Mr.
    Shaikhs counsel advised the preliminary inquiry judge that he and his
    co-counsel had to withdraw for ethical reasons. The preliminary inquiry judge
    accepted this, and Mr. Shaikhs counsel and his co-counsel were removed from
    the record. The matter was remanded to November 1, 2016, and then to November
    22, 2016 for new counsel to be retained.

[27]

On
    November 22, 2016, new counsel appeared for Mr. Shaikh and indicated that Mr.
    Shaikh wished to re-elect to be tried before the provincial court, the Ontario
    Court of Justice.

[28]

On
    November 28, 2016, that re-election occurred with the consent of the Crown. No s.
    11(b) waiver was secured from, or offered by, Mr. Shaikh.

[29]

Two
    days later, on November 30, 2016, trial dates were set for March 27-31, 2017.
    The court had offered February 13-17, 2017, however Mr. Shaikhs new counsel
    declined those dates, as he was unavailable.

[30]

On
    November 30, 2016, Mr. Shaikhs new counsel expressed Mr. Shaikhs intention to
    bring a s. 11(b) application in advance of the trial. He soon did so, and on
    March 3, 2017, an application judge heard the motion. The matter was adjourned
    to the first day set for trial, March 27, 2017. Before that date was reached, however,
    the case was traversed by the court to March 28, 2017, and the first day set
    for trial was lost.

[31]

On
    March 28, 2017, the application judge asked the parties several follow-up
    questions. Noting that the trial could not be reached that day, she notified
    the parties that they would receive her ruling the next morning.

[32]

On
    March 29, 2017, the application judge dismissed the s. 11(b) application, and
    the trial was postponed yet another day until March 30, 2017, when it began.

[33]

In
    her March 29, 2017 reasons, the application judge quantified the total delay
    from the charge (October 6, 2014) to the scheduled beginning of the trial
    (March 27, 2017) to be 2 years, 5 months and 21 days, or 901 days.
[1]
She then noted that since the case was not reached on the first few scheduled
    trial dates, the matter would have to be continued and would not end on March 31,
    2017, as originally anticipated. She determined based on courtroom availability
    and the trial estimate that the case would likely conclude on April 12, 2017.
    She therefore took April 12, 2017 as the end of the trial. The total delay she
    was working with was therefore 919 days, or 30.2 months.
[2]

[34]

Having
    calculated the total delay, she went on to consider the net delay. She accepted
    the parties net delay calculation, which was based on the defence concession
    that there were three periods of defence delay:

·

February 24, 2015 to May 1, 2015, the time that lapsed between
    the first pretrial and the day on which the preliminary inquiry dates were set
    (66 days);

·

January 18, 2016 to March 7, 2016, the period after Mr. Shaikh
    declined preliminary inquiry dates because of the unavailability of his counsel
    until the first date set for preliminary inquiry (49 days); and

·

October 6, 2016 to March 27, 2017, the period of delay after Mr.
    Shaikhs former counsel applied to be removed from the record until the first
    date set for trial (172 days).

[35]

Based
    on the defence delay concessions, the application judge ultimately calculated
    the net delay to be 20 months.

[36]

The
    20-month period the application judge worked with is clearly an approximation.
    Unfortunately, it understates the actual net delay that arises from the application
    judges own figures. In fact, the total defence delay arising from the
    identified periods of defence delay was 287 days. If deducted from the 919 days
    of total delay, the net delay would appear to be closer to 21 months,
    specifically, 632 days, or 20 months, three weeks, and two days, or 20.8
    months.

[37]

During
    the s. 11(b) application, the Crown urged the application judge to deduct from
    the net delay a further period of approximately seven months caused by the
    Crown requested adjournment to accommodate the complainants planned trip. The
    Crown argued that this delay was caused by an exceptional circumstance, a
    discrete unforeseeable event outside of the Crowns control. The application
    judge refused. She noted that the dates had been set ten months down the road
    and no evidence had been presented as to when the airplane ticket was booked,
    what the purpose of the trip was, or if efforts were made to ascertain the
    availability of the complainant. Nor was there evidence of any effort by the
    Crown to expedite the second set of dates.

[38]

Notwithstanding
    Mr. Shaikhs re-election, the application judge applied the 18-month presumptive
    ceiling, finding the 20-month net delay she had identified to be presumptively
    unreasonable. She concluded, however, that the presumption of unreasonable
    delay was rebutted, as this was a transitional exceptional circumstance case.
    Until July 8, 2016, the
R. v. Morin
, [1992] 1 S.C.R. 771

regime
    applied. The application judge accepted the agreement of the parties that the institutional
    and Crown delay under the
Morin
guidelines was 15.5 months. This amount
    of delay exceeded the eight to ten months
Morin
guideline for provincial
    court trials. But she concluded that this was only a guideline and departed
    from it because: the trial was taking place in a busy jurisdiction lacking
    institutional resources; the matter was moderately complex; the Crown withdrew
    charges against Ms. Amer to move the matter along; the trial dates were secured
    promptly; and the charges were serious. She found the prejudice to Mr. Shaikh
    from the delay to be troubling, but decided that overall, the prejudice in this
    matter is not so serious as to warrant a stay.

[39]

The
    application judge then concluded:

When I take all issues into
    account, this matter falls extremely close to the line of what I would consider
    acceptable delay.
Any further delay in this matter, even as much as a month,
    would likely cause me to decide otherwise.
[Emphasis added.]

[40]

On
    March 30, 2017, the case commenced before another judge, the trial judge. Although
    Mr. Shaikhs lawyer was ill and could not attend on April 7, 2017, the matter concluded
    on April 12, 2017 as the application judge had expected. The trial judge
    reserved her decision on the merits. She delivered that decision a little over
    a month later, on May 17, 2017.

[41]

On
    June 30, 2017, while awaiting sentencing, Mr. Shaikh renewed his s. 11(b)
    application. Relying on the application judges comment that even as much as a
    month of additional delay would likely have caused her to reconsider and stay
    the proceedings, Mr. Shaikh argued that the month of deliberation delay before
    conviction mattered and that a stay was now required.

[42]

The
    trial judge dismissed the application on July 20, 2017, finding that
    deliberation delay is not to be included in calculating periods of trial delay
    under
Jordan
.

ISSUES

[43]

Mr. Shaikh
    appeals both s. 11(b) rulings, arguing that both judges erred in quantifying
    the net delay: the application judge erred by mischaracterizing periods of
    delay and misapplying the transitional exceptional circumstance; and the trial judge
    erred by finding that the deliberation delay is not included in calculating the
    periods of delay under
Jordan
.

[44]

The
    appeal Crown has raised another central issue in response. She urges that since
    Mr. Shaikh initially elected a superior court trial and only re-elected to have
    a provincial court trial after the dates for the preliminary inquiry arrived,
    the appropriate period of presumptively unreasonable delay should be the 30-month
    period that would have applied had the preliminary inquiry been completed.

[45]

The
    analysis will proceed in the following order:

A.

What presumptive period applies, 18 months or 30 months?

B.

Did the application judge err in calculating the period of delay?

C.

Did the application judge err by misapplying the transitional exception?

[46]

For
    reasons that will be explained, these inquiries make it unnecessary to consider
    the correctness of the trial judges s. 11(b) ruling or the issue of
    deliberation delay.

ANALYSIS

A.

What presumptive period applies, 18 months or 30 months?

[47]

Jordan
established two periods for determining whether net delay is presumptively
    unreasonable: 18 months for trials in the provincial courts, and 30 months for
    trials in the superior courts: at para. 32. For more than two years, Mr. Shaikhs
    case proceeded as if it was a superior court matter, until his re-election to trial
    before the provincial court on November 28, 2016. This raises the question of
    whether the 30-month presumptive period applicable in superior court
    proceedings applies, or the 18-month period applicable to provincial
    proceedings.

[48]

If
    the 30-month presumptive delay period is to be applied, Mr. Shaikhs appeal
    would be easily dismissed. The delay would not be presumptively unreasonable
    since the total delay was 30.2 months, and Mr. Shaikh has correctly conceded
    that the 49 days between January 18, 2016 to March 7, 2016 is defence delay (the
    period after Mr. Shaikh declined preliminary inquiry dates because of the
    unavailability of his counsel to the first date set for preliminary inquiry). As
    explained, under the
Jordan
regime, this defence delay is to be deducted
    from the total delay in arriving at the net delay that is to be used in
    determining whether the delay is presumptively unreasonable. Even leaving aside
    other contentious periods, the maximum net delay would therefore be 870 days
    (or 28.6 months), which is less than the 30-month period of delay required to
    trigger the presumption of unreasonable delay. Mr. Shaikh has offered no
    evidence and made no argument that, in his case, a presumptively reasonable
    period of delay should nonetheless be found to contravene s. 11(b).

[49]

However,
    on the authority of
Jordan
, the 30-month presumptive ceiling does not
    apply in this case. The 18-month presumptive ceiling does. The
Jordan
majority
    described how the appropriate ceiling is to be selected, at para. 46:

At the heart of the new framework
    is a ceiling beyond which delay is presumptively unreasonable. The presumptive
    ceiling is set at 18 months for cases going to trial in the provincial court,
    and at 30 months for cases going to trial in the superior court (or cases going
    to trial in the provincial court
after
a preliminary inquiry). [Emphasis
    added].

[50]

Later
    in the decision, at para. 49, the
Jordan
majority repeated this:

We note the 30-month ceiling would
    also apply to cases going to trial in the provincial court after a preliminary
    inquiry.

[51]

Then
    again in footnote three of the majority decision:

While most proceedings with a
    preliminary inquiry are eventually tried in the superior court, this is not
    always the case. For example, a case may go to trial in the provincial court
    after a preliminary inquiry if the province in which the trial takes place
    offers this as an option (such as Quebec), or if the accused re-elects a trial
    in the provincial court following a preliminary inquiry. In either case, the
    30-month ceiling would apply.

[52]

Here,
    the re-election to provincial court did not occur after the preliminary
    inquiry, but before it commenced. Applying the standards expressed in
Jordan
,
    the 18-month period applies.

[53]

I
    appreciate that
Jordan
did not involve a re-election, and so this issue
    was not directly before the court. However,
Jordan
was not about delay
    in a provincial court trial either. In the interests of certainty and
    simplicity, the majority nonetheless established an authoritative framework for
    provincial court trials as well, setting a presumptive period of unreasonable
    delay of 18 months. In the circumstances, I do not feel at liberty to interpret
    the criterion specifically identified by the
Jordan
majority as a
    passing comment when it is manifest that the majority was delineating how its
    presumptive delay framework was to apply.

[54]

I understand
    the attraction of the appeal Crowns submission that, instead, a case-by-case
    approach should be used to determine whether a re-election occurs late enough
    to warrant imposing the 30-month period of presumptive delay. The difference in
    substance between a re-election after a four-day preliminary inquiry, and a
    re-election during the scheduled dates but before the preliminary inquiry is
    completed does seem negligible. However, it would grate against the objective
    of
Jordan
to evaluate which presumptive ceiling applies on an
    after-the-fact, case-by-case basis during s. 11(b) motions. The
Jordan
majority
    was attempting to establish a bright line structure for s. 11(b) cases using a
    framework that accounts for case-specific factors: at para. 5. The
Jordan
majority
    established the regime it did to overcome the previous, highly unpredictable,
    unduly complex, and endlessly flexible approach that does little to prevent
    delay by giving clear guidance in advance:
Jordan
, at paras. 31-37. The
    formula thrice stated in
Jordan
for when the 30-month period applies to
    provincial court trials must therefore be taken at face value and used as the
    bright line measure. Since re-election occurred before and not after the
    preliminary inquiry, this case falls on the wrong side of that bright line for
    the Crown.

[55]

In
    advocating for a 30-month period of presumptive delay, the appeal Crown relied
    upon the decision in
D.M.S. v. R.
, 2016 NBCA 71, 353 C.C.C. (3d) 396. In
D.M.S.
, on the date set for the preliminary inquiry, the accused waived
    his preliminary inquiry and re-elected to be tried in the provincial court. The
    parties agreed that in these circumstances, the presumptive ceiling was 30
    months. Quigg J.A. accepted this position, commenting, at para. 17:

In my view, when an accused makes
    an election and requires the Provincial Court to schedule a preliminary
    inquiry, barring exceptional circumstances such as a very early re-election to
    be tried by a Provincial Court judge, the case should be treated as one that
    included a preliminary inquiry even if the preliminary inquiry is eventually
    waived.

[56]

With
    respect, the case-by-case approach applied in
D.M.S.
cannot be squared
    with the language or ethic of
Jordan
. This issue does not appear to have
    been fully litigated before the New Brunswick Court of Appeal because of the
    agreement between the parties, and the guidance provided by the
Jordan
decision
    as to when the 30-month presumptive period applies in provincial court trials may
    not have been brought to the courts attention.

[57]

The
    bright line approach that I consider myself compelled to follow does not enable
    the defence to manufacture a s. 11(b) delay by re-electing into a shorter
    presumptive period of delay. Section 561(1) of the
Criminal Code
requires Crown consent before the accused can re-elect to a trial by a provincial
    court judge. Where re-election would create the risk of s. 11(b) problems, the Crown
    has the authority to, and should, refuse consent, absent a s. 11(b) waiver.

[58]

The
    application judge was therefore right to apply an 18-month period of
    presumptively unreasonable delay.

B.

Did the Application Judge Err in Calculating the period of delay?

[59]

The
    appeal Crown agrees that the application judge erred in calculating the period
    of delay, although in the appeal Crowns view, those errors caused the application
    judge to exaggerate the remaining delay. The appeal Crown argues that since the
    remaining delay is shorter than the delay the application judge was working
    with, her ultimate decision remains correct and should not be disturbed. Specifically,
    the appeal Crown claims three errors, two that would benefit the Crown, and the
    other, Mr. Shaikh. I will begin with the alleged errors that would benefit the
    Crown.

[60]

Most
    significantly, the appeal Crown argues in her factum that the delay caused by
    the adjourned preliminary inquiry to accommodate the complainants travel plans
    should have been treated as a discrete event and deducted from the net delay,
    thereby reducing the remaining delay by approximately seven months.
[3]
The appeal Crown was right not to press this submission in oral argument.
    Leaving aside that the Crown had the lawful authority to compel the complainant
    to attend the scheduled court dates and testify notwithstanding his scheduled
    trip, the application judge was correct. The evidentiary record presented by
    the Crown was inadequate to show that the delay could not have been foreseen,
    or that the Crown made efforts to expedite the second dates. Notably, the Crown
    did not seek to preserve any of those dates for other evidence.

[61]

The
    appeal Crown also argues that the application judge erred in not deducting the
    single trial date that was lost when defence counsel became ill on April 7,
    2017. I agree that this one day should have been deducted from the net delay as
    a discrete event, but this is
de minimis
, which may be why the
    application judge did not address it.

[62]

In
    contrast, the error conceded by the appeal Crown that benefits Mr. Shaikh is
    material. Specifically, the application judge erred in calculating the net
    delay by treating as defence delay the 66-day period between February 24, 2015
    to May 1, 2015, the time that lapsed between the first pretrial and the day on
    which the preliminary inquiry dates were set. Defence delay consists of two
    components: periods waived by the accused and periods of delay solely caused by
    the defence:
Jordan
, paras. 61-63. Mr. Shaikh did not waive this period
    of delay, nor was it solely attributable to him.

[63]

In
    fairness to the application judge, this error was triggered by an erroneous
    concession made by defence counsel during the s. 11(b) submissions that this
    period was defence delay. However, the Crown accepts that the application judge
    was wrong to treat this period as defence delay. This error did not arise from
    a factual finding made by the application judge or an inference drawn, but from
    an improper designation of the period of delay by the application judge based
    on uncontentious facts. As counsel for Mr. Shaikh points out, in
R. v.
    Jurkas
, this court held that the designation of periods of delay is a
    matter of law, attracting a standard of correctness: 2018 ONCA 489, 363 C.C.C.
    (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325. An
    application judge errs by accepting incorrect concessions relating to the
    characterization of delay.

[64]

Those
    66 days should not have been considered defence delay, and therefore, should
    not have been subtracted from the total delay when calculating net delay. This
    results in an even longer net delay, above and beyond the presumptive period of
    18 months. Even if we assume that the entire 172-day delay after Mr. Shaikhs
    former counsel applied to be removed from the record could be attributed to the
    defence or treated as delay arising from a discrete event (this period is discussed
    in greater detail below), the net delay would be 697 days
[4]
,
    which is close to 23 months, as opposed to the 20-month period the application
    judge worked with.

[65]

Mr.
    Shaikh argues that the application judge also erred in accepting as defence
    delay most of the period between October 6, 2016, when Mr. Shaikhs former counsel
    applied to be removed from the record, and March 27, 2017, the first date of
    trial (172 days in total). I do not agree entirely with Mr. Shaikh. Most of
    this period should be characterized as either defence delay or discrete exceptional
    circumstance. For reasons that I will explain, I need not resolve whether the
    balance of this delay is also properly considered defence delay. I will divide the
    172-day period of delay into three distinct periods, which I will approach
    chronologically.

[66]

First,
    Mr. Shaikh concedes that the 55-day delay between October 6, 2016, when Mr.
    Shaikhs former counsel applied to be removed from the record, to November 30,
    2016, when the March trial dates were set after re-election to provincial court,
    is a discrete exceptional circumstance. This period of delay resulted because
    Mr. Shaikhs former counsel applied to get off the record, which was an
    unforeseen development. During that period, Mr. Shaikh was obtaining new
    counsel and providing instructions, and therefore, could not move the case
    along. Mr. Shaikh was correct to make this concession and Crown counsel agreed
    with this characterization.

[67]

The
    second period of delay is the 79-day period between November 30, 2016, when Mr.
    Shaikh re-elected to provincial court, and February 17, 2017, the final day in
    the first set of trial dates offered to Mr.  Shaikh. Mr. Shaikh contends that
    this delay cannot fairly be ascribed solely to him as defence delay. In the
    unusual circumstances of this case, I agree. Ordinarily, delay following
    re-election, will have been caused solely by the defence and will qualify as
    defence delay. However, in the unusual circumstances of this case, not all the
    delay that followed his re-election was triggered by these events. Delay was
    inevitable even if re-election had not occurred because no court was available
    for the first two and one-half days of the scheduled preliminary inquiry. As
    the presiding preliminary inquiry judge recognized, given the number of
    witnesses to be called, the preliminary inquiry could not be completed in the
    remaining time and therefore had to be rescheduled, in any event. It is not
    appropriate to treat a period of delay that would have occurred anyway because
    of institutional delay as defence delay.

[68]

However,
    as the Crown points out, it is impossible to know whether the trial would have
    been scheduled more promptly had Mr. Shaikhs former counsel not been removed
    from the record and had continuation dates been set immediately. Responsibility
    for precise periods of delay within that 79-day period cannot be calculated with
    perfect confidence. Perhaps the uncertainty could be resolved pragmatically by
    splitting responsibility for the delay equally, or it may be that it should be
    resolved by endeavoring to determine what would probably have happened. If the
    proper determination would have a material bearing on the outcome of this
    appeal, I would have to resolve how this 79-day period is to be allocated.
    Since the characterization of this period of delay will have no impact on the
    appeal outcome, I will refrain from determining whether the application judge
    erred in treating this period as defence delay. I will assume, for the purposes
    of this appeal, that her treatment of this delay as defence delay was correct.

[69]

The
    final period of the 172-day delay is straightforward. Had Mr. Shaikhs counsel
    been available for the period from February 13-17, 2017, the trial dates Mr.
    Shaikh was offered, the period of delay between February 17, 2017 and March 27,
    2017 would not have occurred. This period of 38 days is therefore defence
    delay.

[70]

In
    sum, there are 38 days of defence delay and 55 days of exceptional circumstance
    delay caused by a discrete event. As indicated, I will proceed, for the
    purposes of this appeal, on the basis that the application judge was correct in
    treating the remaining 79 days as defence delay without determining the matter.
    The application judge should therefore have quantified the delay, as follows:

Total Delay:
919 Days (October 6, 2014 to April 12,
    2017  Date of Charge to End of Trial)

Defence Delay: 166 Days

·

49 Days (January 18, 2016 to
    March 7, 2016

the period after Mr. Shaikh
    declined preliminary inquiry dates because of the unavailability of his counsel
    to the next date set)

·

79 Days (November 30, 2016 to
    February 17, 2017

the period after Mr.
    Shaikh re-elected to provincial court to the final day of the first set of
    trial dates available)

·

38 Days (February 17, 2017 to
    March 27, 2017  the period after the earlier set of trial dates that Mr.
    Shaikh was offered to the date that defence counsel was available)

Net Delay (Total Delay
    Defence Delay):
753 Days

Exceptional Circumstance:
56
    Days

·

55 Days (October 6, 2016 to November 30, 2016  when Mr. Shaikhs
    former counsel applied to be removed from the record to the date on which the
    March trial dates were set after re-election to provincial court).

·

1 Day (April 7, 2017  when
    defence Counsel was ill)

Remaining Delay (Net Delay
    Exceptional Circumstance):
697 Days (22.9 months)

[71]

The remaining
    delay in this case was therefore not the 20 months the application judge worked
    with. At the very least, it was 697 days, closer to 23 months. This is a
    material difference. Although I am not bound to follow the application judges
    lead, had she quantified the remaining delay as close to 23 months rather than
    20 months, given her comment that any further delay in this matter, even as
    much as a month, would likely cause [her] to decide otherwise and find a s.
    11(b) breach, she herself would have stayed the proceedings. She therefore
    erred in her analysis.

C.

Did the application judge err by misapplying the transitional exception?

[72]

The
    burden is on the Crown to satisfy the court that a presumptively unreasonable
    delay can be saved based on a transitional exceptional circumstance. The
    application judge erred in finding that the Crown had discharged this burden.

[73]

The
    transitional exception depends on the Crown having complied with the
Morin
framework
    in the pre-
Jordan
period. If the Crown has not, it is not in a position
    to demonstrate that it has relied reasonably with respect to delay on the law
    as it previously existed. The Supreme Court summarized the
Morin
framework in
Jordan
, at para. 30:

The
Morin
framework requires courts to
    balance four factors in determining whether a breach of
s. 11
(
b
) has occurred: (1) the length of
    the delay; (2) defence waiver; (3) the reasons for the delay, including the
    inherent needs of the case, defence delay, Crown delay, institutional delay,
    and other reasons for delay; and (4) prejudice to the accuseds interests in
    liberty, security of the person, and a fair trial. Prejudice can be either
    actual or inferred from the length of the delay. Institutional delay in
    particular is assessed against a set of guidelines developed by this Court
    in
Morin
: eight to ten months in the provincial court, and a
    further six to eight months after committal for trial in the superior court.

[74]

Although
    the application judge did not break down her length of delay calculations,
    she premised her decision on a
Morin
delay of 15.5 months. It is not
    necessary to do a precise calculation of the
Morin
delay to confirm this
    quantification because even using the 15.5 month
Morin
delay, the
    decision cannot stand. The heart of the transitional exception is the
    unfairness in staying proceedings where the delay occurred because of the trial
    Crowns reasonable reliance on the law as it previously existed:
Jordan
,
    at para. 96. The application judge erred by failing to give adequate scrutiny
    to whether the delays that occurred were reasonably incurred.

[75]

I
    also agree with Mr. Shaikh that the application judge gave inadequate or at
    times improper attention to the relevant considerations informing the transitional
    exceptional circumstances analysis, as identified by this court in
R. v.
    Gopie
, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 178, citing
R. v.
    Williamson
, 2016 SCC 28, [2016] 1 S.C.R. 741. Those considerations include:
    "(i) the complexity of the case; (ii) the period of delay in excess of the
Morin
guidelines; (iii) the Crowns 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]

More
    specifically, the application judge did not properly evaluate the complexity of
    the case, failed to consider whether the period of delay in excess of the
Morin
guidelines was reasonably incurred, gave undue credit to the Crown for
    responding to institutional delay, failed to give adequate recognition to the
    defence effort to move the case along, and improperly minimized the prejudice.
    I will explain.

[77]

Complexity
    of the Case
 The application judge gave undue emphasis to the complexity
    of the case, identifying it as a moderately complex matter because the trial
    estimate was four days. While the time a case requires is not immaterial in
    judging its complexity, much more is required. This was a simple credibility
    case. This case did not require an elaborate intake period to accomplish
    disclosure or to await forensic or expert evidence. It did not need significant
    preparation time, nor present scheduling challenges because of the number of
    accused persons. It was a straight-forward matter, and in all the circumstances,
    the complexity of the case should not have been used as a material makeweight
    in favour of the transitional exception.

[78]

Period
    of Delay in Excess of the
Morin
guideline
 On the application
    judges own calculation, the delay in this case was 15.5 months, more than one
    and one-half times as long as the outer edge of the
Morin
guideline of eight
    to ten months. That excess can easily be identified. That period, and more  seven
    months of delay, in fact  was attributable to the Crowns adjournment request
    to facilitate the complainants trip. As the application judge recognized, she was
    presented with no evidence that could justify this delay. This delay therefore
    cannot be said to have been reasonably incurred.

[79]

Then
    when the second set of preliminary inquiry dates did arrive, having been
    scheduled nine months down the line, the court could not accommodate the
    hearing. Two and one-half days were lost. A further adjournment was inevitable
    because of this institutional delay. This additional delay was not reasonably
    incurred either.

[80]

Nor
    was the short adjournment of the trial caused by the loss of two and one-half
    days of trial time reasonably incurred.

[81]

Yet
    the application judge did not consider any of this when conducting the holistic
    examination that the transitional exception requires.

[82]

The
    application judge did consider appropriately that counsel, including Crown
    counsel, were able to secure trial dates relatively swiftly; however, even this
    117-day delay (3.8 months) from November 30, 2016 to March 27, 2017 was unduly
    minimized. The period of delay is much closer to four months than the just
    over three months into the future described by the application judge.

[83]

Crowns
    Response to Institutional Delay
 No other evidence was led of any steps
    taken by the Crown to ameliorate the delay, although the application judge
    credited the Crown with addressing delay by withdrawing charges against Ms.
    Amer. With respect, this is an incomplete characterization of the trial Crowns
    reasons, which were the following:

[G]iven that she was not in a
    position to proceed, I could have asked for an adjournment; that was, that was
    not an option given the length and history of the matter. Second possibility
    was to apply to sever Ms. Amers matter. I reviewed the case, given the
    strength of the case the fact that she played a minor role, if she played any
    role at all, other than being present at the time. I determined that that was
    not in the interest of justice, nor was it in the publics interest to do that.
    That left me in a third option of simply not proceeding with Ms. Amer if I
    determined that the prospect of conviction against her was pretty weak. And,
    and so it was in I that determined it was in the interest of justice to simply
    withdraw against Ms. Amer and proceed against Mr. Shaikh, who was facing more
    serious charges.

[84]

As
    can be seen, the trial Crown did recognize that an adjournment was not an
    option because of delay, but he explained that he withdrew the charges because
    he concluded that he had a weak case against Ms. Amer. Since Ms. Amer may not
    have played any role in the offences, it was contrary to the interest of
    justice and the public interest to maintain her prosecution. In the
    circumstances, it was not appropriate to treat this decision as a delay
    reducing measure.

[85]

Defence
    Efforts to Move the Case Along
 There is no indication of defence efforts
    to move the case along prior to when Mr. Shaikhs former counsel applied to be
    removed from the record on October 6, 2016. However, after his first counsel was
    released from the record, Mr. Shaikh expressed concern about the delay and
    asked if his trial would occur on the next date if he re-elected and
    represented himself. On November 22, 2016, his new defence counsel, speaking of
    the serious s. 11(b) issue that had developed, advised the court that Mr.
    Shaikh would re-elect to have a provincial court trial, and he did so formally on
    November 28, 2016. There is no doubt that the re-election shortened the
    proceedings. This should have been considered by the application judge but was
    not.

[86]

Prejudice
 The application judge recognized that the prejudice to the accused was
    troubling. And it was. Mr. Shaikh was either under custody or house arrest for
    the first year, and then under curfew pending trial. He provided uncontradicted
    evidence of the strain this matter put on his family, his psychological
    wellbeing, and his ability to work.

[87]

In
    all the circumstances, the transitional exception should not have been applied.
    This delay was presumptively unreasonable; not by a narrow margin but exceeding
    the
Jordan
guidelines by nearly five months. Even the
Morin
guidelines
    were exceeded substantially. There was no meaningful demonstration that the
    Crown had been mindful of its s. 11(b) obligations even as they existed prior
    to
Jordan
, and the prejudice was troubling. The seriousness of the
    charges and the finality of a stay cannot fairly outweigh these considerations.

[88]

The
    application judge called this a close case even when using a 20-month net delay
    calculation and she gave every indication that she would have stayed the
    charges had she properly quantified the period of delay. That was the outcome
    she should have ordered.

CONCLUSION

[89]

I
    would allow the appeal, set aside the convictions, and stay the charges against
    Mr. Shaikh. It is therefore unnecessary to consider whether deliberation delay
    is included in the
Jordan
period, or to examine the trial judges s. 11(b)
    decision.

Released: D.W. November 13, 2019

David M. Paciocco
    J.A.

I agree. David Watt
    J.A.

I agree. P. Lauwers
    J.A.

[1]
It appears the application judge made a counting error. The number of days
    between October 6, 2014 to March 27, 2017 is 903 days.
When
    calculating this, and other periods of delay between two dates, I do not
    include the first or last day of the period. The first day is not considered
    delay and the last day should not be counted either because it is the date on
    which proceedings resume.

[2]

I have converted days to months by dividing by 30.417, which
    is approximately 365/12. I have also rounded month figures to one decimal
    point.

[3]

The preliminary inquiry was initially scheduled to begin on
    March 7, 2016, but it was rescheduled to October 4, 2016 to accommodate the
    complainants trip. This is a 211-day or 6.9-month delay.

[4]

Total delay of 919 days subtracted by the 49 days conceded by
    the defence, the one day that counsel was ill, and 172 days, is 697 days.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2019 ONCA 872

DATE: 20191105

DOCKET: C65587

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jasvir Singh

Appellant

Alan D. Gold and Alex Palamarek, for
    the appellant

Mabel Lai, for the respondent

Heard: November 1, 2019

On appeal from the
    conviction entered on February 9, 2018, by Justice Alexander D. Kurke of the Superior
    Court of Justice, and the sentence imposed on July 31, 2018, with reasons
    reported at 2018 ONSC 386.

REASONS FOR
    DECISION

[1]

Mr. Singh was convicted of dangerous driving
    causing death. He was sentenced to three years incarceration, in addition to five
    days pre-sentence custody, and a five-year driving prohibition. He appeals his
    conviction and sentence.

[2]

In the morning of January 11, 2016, two tractor
    trailers collided on Highway #11 near Val Gagne, Ontario, just south of
    Cochrane. A snowstorm the day before had closed the highway. Roughly an hour
    after it had reopened, the collision occurred. That morning, the road and
    weather conditions were poor. There was blowing and drifting snow, causing
    whiteouts as long as four to five minutes. The road was covered in snow and ice
    and was slippery.

[3]

Mr. Singh was driving a 53-foot tractor trailer
    in the southbound lane. He collided with a tractor trailer in the northbound
    lane. The driver of the northbound truck, Gary Messenger, died from his
    injuries.

[4]

Witnesses described that, before the fatal
    collision, Mr. Singh had passed a red sedan thereby forcing a northbound Home
    Hardware truck onto the northbound shoulder of the highway to avoid a
    collision. Mr. Singh then had to cut back at the last second into the
    southbound lane.

[5]

Once Mr. Singh returned to the southbound lane,
    three vehicles overtook him in one pass: a logging truck, a Ford truck pulling
    a U-Haul trailer, and a minivan. The Ford truck then passed the minivan. Mr.
    Singh also passed the minivan and then pulled into the northbound lane to pass
    the Ford truck as well. The driver of the Ford truck testified that, at this
    point, he saw the headlights from Mr. Messengers truck coming towards them in
    the northbound lane Mr. Singh veered left to the northbound ditch and, in the process,
    collided with the Messenger truck which was demolished.

[6]

The charge against Mr. Singh arose from the
    fatal collision. The trial judges reasons refer to the sequence of events
    before this collision and the near miss with the Home Hardware truck as
    dangerous driving on the part of Mr. Singh.

[7]

Mr. Singh  appeals on the basis that the trial
    judge erred by: (i) considering Mr. Singhs near miss with the Home Hardware
    truck as part of the dangerous driving offence; (ii) finding that the
    circumstances of the fatal collision constituted a marked departure from the
    standard of care of a reasonable driver; and, (iii) providing insufficient
    reasons for the conviction.

[8]

Mr. Singh submits that, by considering the Home
    Hardware truck incident in relation to the offence charged, the trial judge
    erred in two ways. First, he misapprehended the facts because, contrary to the
    trial judges finding, Mr. Singh did not pass the red sedan on the crest of a
    hill, but rather where the road had levelled. He points to the evidence of
    Andre Plourde, who was driving the U-Haul, that the road was straight. We do
    not agree that the trial judge misapprehended the evidence. It was open to him
    to accept the evidence of other drivers that Mr. Singh had passed as they were
    going up a little hill. In support of this finding, the police officer gave
    evidence that a rise in the road starts about a kilometer north of the point of
    collision.

[9]

Second, Mr. Singh submits that by labelling the
    Home Hardware truck event as dangerous driving the trial judge was convicting
    him of a crime for which he was not charged and this tainted and pre-determined
    his conclusion with respect to the fatal collision.

[10]

We do not agree.

[11]

Mr. Singhs conduct that led to the fatal
    collision was one series of events that demonstrated a pattern of behaviour. As
    the trial judge stated, the near miss should have caused him to modify his
    driving. It did not. The trial judge was entitled to consider the whole of his
    driving in relation to the fatal collision as part of a sequence of events. The
    trial judge did not  as Mr. Singh submits  erroneously consider the near-miss
    as similar fact evidence. It was part of the same transaction that was being
    prosecuted.

[12]

Mr. Singh also submits that his conduct did not
    constitute a marked departure from the standard of care of a reasonable person
    in the circumstances. In this regard, he relies on the fact that the other cars
    were passing that morning as well. This submission ignores the evidence of
    Pascal Plourde (the driver of the Ford truck) who testified that when Mr. Singh
    pulled out to pass, there was a whiteout, visibility was limited, and he could
    not see the logging truck ahead of him. As Mr. Singh moved to the northbound
    lane to pass him, Mr. Plourde saw the headlights of the Messenger truck.

[13]

Mr. Singh was driving a 53-foot tractor trailer.
    He was passing cars and trucks on a snowy, icy highway in weather conditions with
    intermittent whiteouts caused by blowing and drifting snow. The trial judge did
    not err in concluding that his attempt to pass the Ford truck almost represented
    a wanton and reckless disregard for the lives and safety of those on the road. Mr.
    Singh drove dangerously and is guilty of contravening s. 249(4) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.

[14]

Finally, we do not agree that the trial judges
    reasons are insufficient. They clearly articulate the path to conviction and
    are capable of appellate review.

[15]

Mr. Singh submits that the sentence is harsh and
    excessive and that this court should substitute a sentence of 12 months custody
    and a one-year driving prohibition.

[16]

We see no error in principle warranting
    appellant intervention.

[17]

The appeal is dismissed. Leave to appeal the sentence
    is granted, but the sentence appeal is dismissed.

M.L. Benotto J.A.

David Brown J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stonefish, 2019 ONCA 914

DATE: 20191121

DOCKET: C66666

Lauwers, van Rensburg and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shannon Stonefish

Appellant

Shannon Stonefish, in person

Megan Savard, duty counsel

Vanita Goela, for the respondent

Heard: November 6, 2019

On appeal from the conviction entered on May 9, 2018 and
    the sentence imposed on January 22, 2019 by Justice David M. Gibson of the Ontario
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for the purposes of
    trafficking cocaine under s. 5(2) of the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19, and of failure to comply with conditions of a recognizance
    contrary to s. 145(3) of the
Criminal Code
, R.S.C., 1985, c. C-46
. He was sentenced
    to 41 months imprisonment.

[2]

Although the appellant appealed both conviction and sentence, he pursued
    only the conviction appeal
.

The Factual Context

[3]

The appellant was driving on the highway near Fort Frances when he was
    stopped because the officer could not read the licence plate number. The plate
    light was not functional, contrary to the
Highway Traffic Act
,

R.S.O.
    1990, c. H.8
. The appellant concedes that the
Highway Traffic
    Act
stop was appropriate.

[4]

When the appellant opened the passenger window, the officer could smell
    the odour of burnt marijuana. The appellant could not produce his driver's
    licence or any other identification but correctly identified himself. He said
    he was driving from Winnipeg to Seine River First Nation, where he intended to
    pick up his sister to bring her back to Winnipeg. He advised the officer he was
    driving overnight to avoid getting caught driving without a licence.

[5]

The officer testified that the appellant appeared nervous, and she
    suspected he was under the influence of marijuana because his eyes were red.
    When the officer asked about the smell of marijuana, the appellant said that he
    had smoked some and pointed to a silver metal marijuana grinder in the cup
    holder of the car. The grinder contained a green leafy substance. The officer
    then arrested the appellant for possession of a controlled substance. She
    searched him and found $1,195 in cash in his pocket. She also seized a cell phone
    from the driver's seat, which was receiving text messages and at least one call
    during the time that they were in contact. While waiting for a second officer
    to arrive at the scene, the officer questioned the appellant about the
    ownership of the vehicle. The appellant said that the car belonged to his
    friend's girlfriend, but then gave the officer an incorrect name for the cars owner.

[6]

Another officer then opened the hood of the car and found a package
    containing 172 grams of cocaine in a ziploc bag. The package was clearly
    visible when the hood was opened. The street value of the cocaine was between $11,000
    and $18,000.

The Charter application

[7]

The appellant brought an
    application for
Charter
relief alleging that his s. 10 right to counsel was violated when
    the officer questioned him about the odour of marijuana in his vehicle, and
    that his s. 8 right to protection against unreasonable search and seizure was
    violated by the search of the car.

[8]

The trial judge's reasons for
    dismissing the
Charter
application set up the nub of the appellant's argument. The trial judge noted:

[T]he
    officer was entitled to follow-up her suspicions concerning the drivers sobriety
    by asking a question that is the functional equivalent in the circumstances of
    the unobjectionable, have you had anything to drink tonight. In this case, why
    does your car smell like burnt marijuana? Mr. Stonefish's answer to that
    question provided ample grounds for the officer to proceed with an arrest. Concerning
    the search of the vehicle, its common ground that the common law power to
    search incident to arrest extends to motor vehicles. The question before this
    court concerns the scope of that power to search. The Supreme Court in
Caslake
has made it clear that such a search must be truly
    incidental to the arrest and that the authority for it arises not because of
    the reduced expectation of privacy of the arrested individual in a vehicle, but
    because of the need for law enforcement to gain control of things and
    information which outweighs the individuals privacy right (See paragraph 17 of
Caslake
). In this matter Mr. Stonefish
    alleges the search for drugs under the hood of his vehicle was not rationally
    connected to his arrest for being in possession of a small amount of marijuana
    and was therefore outside the scope of a lawful search incident to arrest.

The trial judge found that it
    was objectively reasonable to search the vehicle for evidence of more
    controlled substances.
He
    rejected the argument that looking under the hood of the car was unreasonable,
    considering the relatively small and unconcealed amount of marijuana initially
    located. The trial judge concluded [i]n this particular case popping the hood
    of the car to check the engine compartment and finding a suspicious package in plain
    view is not a search carried out in an unreasonable fashion.

[9]

The issue at trial was the
    appellants knowledge and control over the drugs found under the hood. As the
    trial judge noted:
The issue
    before me is whether the circumstantial evidence in this matter is conclusive
    enough to negative any other inference other than that the accused knew he was
    transporting the cocaine.

[10]

The trial judge referred to
    the suspicious circumstances including that the appellant was the driver and
    sole occupant of the vehicle for which he had care and control, and that he was
    driving a lengthy distance in the middle of the night to avoid police attention
    because he was an unlicensed driver. The trial judge noted: It is also
    possible his explanation was only half true. On its own this possibility is not
    particularly probative of consciousness of guilt on the possession issue."

[11]

The trial judge then cited three facts as more probative. The first was
    a series of text messages from which the trial judge concluded that there was evidence
    the accused was engaged in black market dealing in an unspecified contraband to
    a uncertain degree. On the appeal duty counsel takes no issue with the trial
    judge's use of the cell phone evidence.

[12]

Second, the trial judge referred to the appellant's failure to
    accurately name the registered owner of the vehicle he was operating. From
    this the trial judge inferred that the appellant either did not know the owners
    name, or he gave a false name to deflect attention from the owner. Third, the
    street value of the drug was high, in the range between $11,000 and $18,000.
    The trial judge rejected the idea that the owner of the car holding drugs of
    such value would let Mr. Stonefish take it without him knowing of them. He
    concluded I do not believe that such a possibility supports a reasonable doubt
    about the guilt of the accused.

The Argument on Appeal

[13]

Duty counsel renews the
Charter
challenge and argues that the
    arresting officer made a critical pivot at the moment she detected the smell of
    marijuana, which changed the situation from a routine traffic stop under the
Highway
    Traffic Act
into an active criminal investigation. She argues that the
    officer should have immediately advised Mr. Stonefish of his
Charter
rights and refrained from asking questions of him. She submits that the
    question asked of Mr. Stonefish:
Why
    does your vehicle smell like burnt marijuana?
was impermissible. When she knew that he was not licensed,
    the arresting officer also knew that he would not be driving the car again that
    night, so that any questions concerning his sobriety were no longer relevant.

[14]

In our view the appellant takes too granulated an approach to the
    situation. It was evolving and it was not unreasonable for the officer, upon
    smelling the burnt marijuana, to arrest the appellant for possession of a
    controlled substance. Her question was quite natural in the circumstances and
    did not constitute a
Charter
violation. Indeed, she need not have
    asked the question since the answer was obvious.

[15]

Duty counsel relies particularly on this court's decision in
R. v.

Gonzales
, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 99. The court
    said:

Where the justification for a
    search incident to arrest is to find evidence, there must be some reasonable
    prospect of securing evidence of the offence for which the rest has been made:
Caslake
,
    [
R. v. Caslake
, [1998] 1 S.C.R. 51], at para 22. A
    search incident to arrest may include a search of an automobile of which the
    arrested person is in possession, but the scope of that search will depend on
    several factors.

[16]

We accept the principle but not the application proposed by counsel. Once
    she arrested the appellant, the officer was free to search him and the vehicle
    incident to the arrest. The fact that there was a small amount of marijuana in
    the cup holder led quite naturally to a search for more marijuana elsewhere in
    the car. That search turned up the cocaine stored in open view that was
    revealed when the hood was opened. This is not a case in which the officers
    were using the
Highway Traffic Act
as a pretext for searching the car,
    as in some of the cases.
In this
    case, the search was not particularly intrusive, nor did it cross any
Charter
lines.

[17]

The appeal is dismissed.

P. Lauwers J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2019 ONCA 919

DATE: 20191122

DOCKET: C62622

Watt, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jenny Tran

Appellant

Jenny Tran, acting in person

Kevin Rawluk, for the respondent

Heard: November 6, 2019

On appeal from the convictions entered on January 23,
    2015 and the sentence imposed on April 2, 2015 by Justice Kelly P. Wright of
    the Superior Court of Justice, with reasons reported at 2015 ONSC 534.

REASONS FOR DECISION

Introduction

[1]

After a trial that spanned more than 70 days, the appellant was
    convicted of two counts of fraud over $5000 (
Criminal Code
, R.S.C.
    1985, c. C-46, s. 380(1)(a)), two counts of fraud under $5000 (s. 380(1)(b)),
    one count of attempting to obstruct justice (s. 139(2)), one count of forgery
    (s. 366(1)(a)), and one count of causing someone to use a forged document (s.
    368(1)(b)). She was sentenced to 14 months in jail. She appeals her convictions.

[2]

The appellant commenced proceedings in this court as a self-represented
    litigant. Her appeal was eventually converted to a solicitor appeal. Counsel perfected
    the appeal and filed a 43-page factum. The appellant discharged her counsel
    shortly before the appeal was scheduled to be heard. The appellants application
    for an adjournment of the appeal hearing, and her request that
amicus

curiae
be appointed, were dismissed.

[3]

At the appellants request, a Cantonese interpreter was present in court
    for the hearing. However, as was her right, the appellant chose to make her
    submissions in English, and did so without any apparent difficulty.

[4]

After the hearing, the appeal was dismissed with reasons to follow. These
    are our reasons. We consider Ms. Trans oral submissions, and the arguments
    raised in the factum filed on her behalf.

Factual Background

[5]

The appellant held herself out as a qualified heath care provider. She
    performed and billed for services that she was not qualified to perform (i.e.,
    massage and acupuncture). The appellant billed her clients insurance companies
    for services that she never performed. She submitted false claims for some of
    her clients spouses and children who had never attended the clinic. If an
    insurance claim was denied, the appellant would often report the clients
    unpaid bills to a collection agency. She sued two of her clients for refusing
    to pay.

[6]

The Crown led the evidence of five of the appellants clients. The trial
    judge found their evidence to be compelling. The Crown also relied on the
    evidence of an insurance company employee, the Director of Professional
    Misconduct for the Ontario College of Massage Therapy, and a naturopathic
    doctor. The appellant testified in her own defence, and called two other former
    clients as witnesses. The trial judge rejected all of the appellants evidence.
    In detailed reasons, she found the appellant guilty on the seven counts set out
    above.

Grounds of Appeal

[7]

The appellant submits that the trial judge erred in refusing to grant
    her request for an adjournment of the trial after she discharged her counsel.
    The appellant had been placed in custody because she had failed to attend court
    for her trial as directed by the trial judge.

[8]

Ms. Tran relied on letters from four doctors who asserted that she was
    too ill to conduct her trial. The trial judge was not content to proceed on the
    basis of the letters alone and requested that two of the doctors testify on the
    application. Both doctors expressed concerns about Ms. Trans self-reported
    mental health concerns. The trial judge rejected their evidence. As she said,
    I find that both doctors demonstrated a complete abdication of their medical
    opinions, without hesitation and without confirmation, by adopting Ms. Trans
    self-reported illnesses. The trial judge also rejected the appellants
    evidence that she was too unwell to conduct her own trial. She found that Ms.
    Tran was malingering.

[9]

The trial judge properly exercised her discretion to refuse the adjournment
    request. The appellant had already obtained numerous adjournments as she hired
    and fired multiple lawyers. The trial judge carefully considered the
    appellants claims of mental distress, as well as her assertions that she was
    unable to present her own defence. The long and tortured history of the case
    amply justified the trial judges decision to refuse Ms. Trans request: see
R.
    v. Patel
, 2018 ONCA 541, at para. 3.

[10]

After she denied Ms. Trans adjournment request, the trial judge took
    all reasonable steps to ensure that the appellant received a fair trial. She
    explained the rules of evidence and offered to assist the appellant in framing
    her questions for the witnesses. Moreover, the trial judge appointed very
    experienced defence counsel as
amicus curiae
who effectively assisted
    the appellant throughout the trial. The trial judge allowed
amicus
counsel wide latitude, including permitting her to question the two defence
    witnesses.

[11]

This was an extremely difficult trial to conduct and keep on track. The
    trial judge did everything reasonably possible to accommodate the appellants seemingly
    endless demands. On one occasion when the appellant complained about the trial
    process, the trial judge said:

[A]s I reflect on this trial every single request you have made
    has been addressed and accommodated with the exception of more recently the
    highlighter issue and from the very distant past, the French fry and the coffee
    request. Those are the only things that I can think of that youve not been
    accommodated on.

Everyone involved in this trial has done everything they can to
    assist you in every way they can. In my view, you have been given more
    resources than any other individual I know who has been in a trial at the
    Superior Court or even the Ontario Court level.

[12]

This ground of appeal is dismissed.

[13]

The appellant argues that the trial judge erred in ordering the
    appellants detention to ensure her attendance at trial. The trial judges
    decision was well supported by the appellants previous failures to appear in
    court, which resulted in delays in the trial. Moreover, the appellant did not
    seek to review her detention order.

[14]

This ground of appeal fails.

[15]

The appellant submits that counts four through eight of the indictment are
    void for vagueness and that her convictions on these counts are unreasonable
    and not supported by the evidence. There is no merit in either claim.

[16]

The counts in question were framed in a manner that sufficiently informed
    the appellant of the nature of the allegations made against her. Moreover,
    there was a firm evidentiary basis for the trial judges findings of guilt on
    counts four through eight. The verdicts were not unreasonable.

[17]

This ground of appeal is dismissed.

[18]

Lastly, the appellant submits that the trial judge reversed the burden
    of proof. We disagree. The trial judge properly instructed herself in
    accordance with
R. v. W.(D.)
, [1991] 1 S.C.R. 742, and her reasons
    demonstrate that she properly applied these principles. Accordingly, we reject
    this ground of appeal.

Conclusion

[19]

The appeal from conviction is dismissed. The appellant originally
    appealed her sentence. However, she made no submissions on the issue and the
    sentence has long since been served. The appeal from sentence is dismissed as
    moot.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Van-Luyk, 2019 ONCA 887

DATE: 20191108

DOCKET: C66083

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Van-Luyk

Appellant

William Gilmour, for the appellant

Charmaine Wong, for the respondent

Heard: November 5, 2019

On appeal
    from the conviction entered on July 31, 2018 by Justice Iona M. Jaffe of the Ontario
    Court of Justice, with reasons reported at 2018 ONCJ 528.

REASONS FOR DECISION

[1]

The appellant was convicted of arson causing
    damage to property and mischief endangering life, arising out of two incidents
    involving damage to a car belonging to the mother of his former girlfriend.  He
    was acquitted of a charge of mischief involving a third incident, in which one
    of the tires on the mothers car was slashed.

[2]

On February 7, 2017, the mothers car was set on
    fire and destroyed. On March 7, 2017, a new car that the mother had purchased was
    doused in gasoline, and an attempt was made to set it on fire. On both of these
    occasions, the damage occurred while the car was parked in the driveway of the
    mothers house, where the appellants former girlfriend lives.

[3]

The appellant argues that the trial judge erred
    in admitting and relying on similar fact evidence and erred in identifying the
    appellant as the perpetrator from security video footage.

[4]

We dismissed the appeal without calling on the
    respondent. These are the reasons for our decision.

The March 7th mischief charge

[5]

The trial judge dealt first with the
March 7, 2017
mischief charge.

[6]

The sole issue at trial was the identification
    of the perpetrator. Who doused the car with gasoline and attempted to set it
    alight?

[7]

The appellant concedes that he was videotaped
    filling a gasoline container at approximately 1:40 a.m. on March 7, 2017, at a
    Petro-Canada station approximately 1.7 kilometres from the mothers home. At
    approximately 2:00 a.m., a surveillance camera at the mothers home captured
    someone emptying the contents of a gasoline container onto her car while a
    second person looked on. The trial judge found that the person emptying the
    container was the appellant.

[8]

The trial judge made this finding after viewing
    the home video evidence multiple times and comparing it with higher quality
    video of the appellant from the gas station. She acknowledged some differences
    between the appearance of the appellant in the videos, including the fact that he
    appeared to be wearing a lighter coloured sweater in the home video. However, the
    trial judge considered that any weakness in the evidence as a result of the
    sweater was compensated by similarities in the pants worn by the appellant and
    the person seen dousing the car  both were somewhat baggy with white stitching
    on the back pockets. This, combined with other circumstantial evidence of
    identity, convinced the trial judge that the appellant was the person caught by
    the surveillance video at the mothers home.

[9]

Having reviewed the videos at the appellants
    request, we see no basis to interfere with the trial judges identification of
    the appellant. It was a finding open to the trial judge and is entitled to
    deference.

[10]

The trial judge made no error in concluding the
    mischief charge was proven beyond a reasonable doubt. Nor is there any basis to
    interfere with her conclusion, conceded at trial, that the mischief caused
    actual danger to life.

The February 7th arson charge

[11]

The conviction on the February 7, 2017 charge
    was based in large part on the trial judges decision on the Crowns similar
    fact application.

[12]

The appellant submits that the trial judge erred
    in concluding that the February 7 and March 7, 2017 offences were likely
    committed by the same person, pointing out that different accelerants and
    different igniters were used on each occasion.

[13]

There is no merit to this submission.

[14]

The trial judge carefully considered the many similarities
    between the two offences. She acknowledged the relevant differences, including
    the use of different accelerants and different igniters, but these differences were
    minor in the context of the striking similarities she found. Both incidents
    occurred on the seventh day of successive months. Both incidents occurred in
    the middle of the night. In both cases, cars belonging to the mother of the
    appellants former girlfriend were doused with accelerant. In one case, the
    mothers car was set on fire, and in the other an attempt was made to set it on
    fire. Both incidents occurred while the cars were parked in the driveway of the
    mothers home.

[15]

The trial judges conclusion that the two
    offences were likely committed by the same person is amply supported by the
    record and is entitled to deference.  The appellant has not established any
    basis that would allow this court to interfere with it.

[16]

The trial judges conclusion that the appellant
    was guilty of the February 7, 2017 arson charge was not based solely on the
    similar fact evidence. The trial judge was satisfied that the appellant
    committed the March 7, 2017 offence, and the similar fact evidence satisfied
    her that whoever committed that offence also committed the February 7, 2017
    offence. There was also evidence of motive  albeit evidence she acknowledged
    was not weighty. The trial judge made no errors in concluding that the charge
    had been proven beyond a reasonable doubt.

Conclusion

[17]

The appeal is dismissed.

[18]

The appellant did not seek leave to appeal
    sentence. However, the Crown does not oppose granting leave in order to address
    the victim fine surcharge. Accordingly, we grant leave to appeal and vary the
    sentence to eliminate the surcharge. The sentence is in all other respects affirmed.

David Watt
    J.A.

Grant Huscroft
    J.A.

Gary Trotter
    J.A.


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. Vlaski, 2019 ONCA 927

DATE: 20191126

DOCKET: C65792

van Rensburg, Hourigan and Thorburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Goran Vlaski

Appellant

David Humphrey and Jill Makepeace, for the appellant

Caitlin Sharawy, for the respondent

Heard: November 7, 2019

On appeal from the conviction entered on January 22, 2018,
    by Justice David Corbett of the Superior Court of Justice.

Hourigan J.A.:

I.

Introduction

[1]

The background facts of this sexual assault case may be briefly stated.
    The appellant and the complainant met in a bar on January 31, 2016. After a short
    discussion, they took a taxi to the appellants parents apartment.

[2]

Both parties had been drinking that evening. The appellant testified that
    the complainant was not intoxicated. The complainant testified that she was intoxicated
    but did not lack the capacity to consent to sexual activity.

[3]

The complainant remembers that she and the appellant engaged in
    consensual kissing in a spare bedroom in the apartment. She was concerned that
    their activities were heading toward sex, so she told the appellant that she
    did not want to have sex. The next thing the complainant says she remembers was
    lying on her front while the appellant was having vaginal intercourse with her.
    The complainant says that she told him to stop and he did not. According to the
    complainant, the appellant then engaged in anal sex with her and refused to
    stop when she told him to do so.

[4]

In contrast to the complainants evidence, the appellant testified that
    he engaged in consensual vaginal intercourse with the complainant and he denied
    having anal intercourse with her. The appellant also said he wore a condom.

[5]

The complainant left the apartment immediately after the incident. There
    is video footage of her riding in an elevator and leaving the building in her
    bare feet. She testified that she was distraught after the encounter, while the
    appellants evidence was that she appeared to be happy immediately before
    leaving the apartment.

[6]

The forensic evidence confirmed the presence of semen in the
    complainant's vagina. The analysis of two rectal swabs was inconclusive as to
    whether male DNA might be present.

[7]

The appellant was convicted of one count of sexual assault. He appeals
    his conviction, asserting three grounds of appeal: (i) the trial judges
    reasons are insufficient, in that they fail to address reliability concerns
    regarding the complainants evidence; (ii) the trial judge improperly used the
    complainants prior consistent statements to fortify her evidence; and (iii)
    the trial judge applied an uneven standard of scrutiny to the defence and Crown
    evidence.

[8]

For the reasons that follow, I would not give effect to any of these
    grounds and would accordingly dismiss the appeal.

II.

Analysis

(i)

Sufficiency
    of Reasons

[9]

The appellant concedes that this ground of appeal will only succeed if
    he can establish that the reasons are so deficient that meaningful appellate review
    is foreclosed: see
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639 at
    para. 10. Nevertheless, he submits that this standard has been met because the
    trial judge did not address two aspects of the complainants evidence that
    warranted meaningful consideration.

[10]

The appellant argues that the trial judge was obliged to explain why the
    complainants numerous memory lapses in her testimony did not render her
    evidence unreliable. In his factum, the appellant cites several instances where
    the complainant was unable to recall details of events that occurred during the
    evening of the alleged assault. I would reject this ground of appeal for two
    reasons.

[11]

First, the trial judge's reasons must be read in the context of the parties
    positions at trial. Defence counsel did not argue that the complainant's
    evidence was unreliable. Instead, he submitted that the complainant had a
    selective memory. In other words, the argument was not that she was unreliable
    but that she was not credible. The trial judges reasons were responsive to the
    defences position and therefore focused on the complainants credibility.

[12]

Second, many of the memory lapses complained of relate to peripheral
    matters, such as the apartments appearance and where exactly in the bar she
    met the appellant. The trial judge was not required to avert in his reasons to
    memory lapses on these peripheral matters.

[13]

There were other memory lapses regarding precisely what transpired
    immediately before the vaginal intercourse began. Examples include details
    regarding which articles of the complainants clothes were removed and how. The
    appellant also notes that the complainant does not remember what happened to
    her between her statement that she did not want to have sex and her memory of
    the appellant being on top of her.

[14]

It is inaccurate to suggest that the trial judge did not consider these
    issues in his reasons. While he did not reference the memory lapses in detail, the
    trial judge recognized that the complainants evidence was not clear about how
    quickly things unfolded after she expressed her lack of consent. He therefore
    looked for and found confirmatory evidence to substantiate the complainants
    version of events. The trial judge relied on the video footage from the
    elevator after the incident, which he found showed that the complainant was
    distraught.

[15]

In my view, the trial judge's reasons were not deficient because of his
    failure to detail the reliability concerns raised by the appellant.

[16]

The appellant further submits the trial judges reasons were insufficient
    because they failed to determine whether the complainant's allegation of forced
    anal penetration occurred. The trial judge is said to have compounded this
    error by finding that there was some kindof anal manipulation, whether it was
    digital or with the accuseds penis. The appellant argues that this was an
    unavailable compromise finding because the complainant did not raise the
    possibility of anal manipulation short of penetration in her testimony.

[17]

I would not give effect to this submission.

[18]

The trial judge recognized that he could not resolve the issue of anal
    penetration on the state of the forensic evidence. As he put it, the fact that
    semen was not found in the complainant's anus "does not mean there was not
    penetration". Based on the uncertainty in the evidence, he was not
    satisfied beyond a reasonable doubt that anal penetration took place.

[19]

This was a single count case and the trial judge accepted the
    complainant's testimony regarding the non-consensual vaginal intercourse. Consequently,
    it was unnecessary for the Crown to prove the
actus reus
of sexual
    assault by means of forced anal penetration.

[20]

Ultimately, the issue of whether anal penetration had occurred was
    relevant only to the complainant's credibility. In essence, the appellants
    complaint appears to be that the trial judge refused to draw the inference
    urged by the appellant, that in the absence of conclusive forensic evidence of
    penetration, the complainant must have been lying about the anal intercourse. On
    the record, it was open to the trial judge to find the possibility of anal
    manipulation short of penetration. This was a plausible explanation where the
    complainant testified that there was contact with her anus, and there was no
    confirmatory forensic evidence of penetration. In any event, the inclusion of
    this finding in the trial judges reasons does not assist the appellant on this
    ground of appeal, which alleges insufficient reasons.

[21]

In summary, the trial judges reasons were not deficient. They explained
    clearly and succinctly how he reached his finding of guilt. Appellate review is
    not foreclosed. This ground of appeal fails.

(ii)

Prior Consistent
    Statements

[22]

In support of his second ground of appeal, the appellant relies on a
    reference in the reasons to the complainants disclosure of the alleged sexual
    assault to a friend and a co-worker as follows:

As I have indicated, the complainant reported
    the incident to her friend and then her co-worker the next morning. The
    co-worker persuaded the complainant to call the police.

The complainants account of events to the
    friend and co-worker was consistent with her account to the court, and her
    demeanour with both was likewise consistent with her account.

As prior consistent statements, these
    statements are not admissible for the truth of their contents, that is, the
    statements to the friend and the co-worker. However, these immediate complaints
    do not serve to cast doubt on the complainants evidence as to what happened.

[23]

The appellant submits that although the trial judge explained that the
    statements were not admissible for the truth of their contents, the only
    reasonable inference is that he impermissibly used the complainants prior
    consistent statements to fortify the complainants evidence.

[24]

There is no basis to support the inference that we are invited to draw.
    In considering this ground of appeal, it is essential to carefully consider the
    trial judge's comments and the context in which they were made.

[25]

The reference to the prior consistent statements in the first paragraph
    of the quote is pure narrative. It explains how the complainants case came to
    be reported to the police. As such, it is a recognized exception to the rule
    that prior consistent statements are presumptively inadmissible:
R. v. Khan
,
    2017 ONCA 114, at para. 30, leave to appeal refused, [2017] S.C.C.A. No. 139.

[26]

The appellant makes two arguments concerning the remaining paragraphs in
    the quote. First, he says that the trial judge speculated that the statements
    were consistent with the complainant's court testimony because the Crown did
    not adduce any evidence about what precisely was said to the friend and the co-worker.

[27]

I do not read the trial judge's comments as meaning that the details of
    the statements were consistent. Instead, I read his comments as a limited
    observation that the complainant told her friend and her co-worker that she was
    sexually assaulted, and that she said the same thing in her testimony. To that
    extent only, the statements were consistent with her testimony.

[28]

The next issue is whether the trial judge impermissibly used the prior
    consistent statements to bolster the complainants credibility. I find that he
    did not.

[29]

While a prior consistent statement cannot be used for the impermissible
    purpose of confirming the truthfulness of an allegation, it can be used for
    the permissible purpose of showing the fact and timing of a complaint,
which
    may then assist the trier of fact in the assessment of truthfulness or
    credibility

(italics in original) :
R. v. Dinardo
, 2008 SCC 24
,
[2008] 1 S.C.R. 788
, at para.
37.

[30]

This exception to the prior consistent
    statement rule is referred to as narrative as circumstantial evidence
."
    It recognizes that, in t
he appropriate case,
    prior consistent statements can assist a trial judge to assess the truthfulness
    or reliability of the declarant:
Khan
, at paras. 31-34.

[31]

In the present case, the defence sought to impeach the complainant's
    credibility on the basis that it was her co-worker who initially called the
    police. In these circumstances, it was permissible for the trial judge to
    reference the statements for the limited purpose of assessing that argument.
    That is what he did when he concluded: "these immediate complaints do not
    serve to cast doubt on the complainant's evidence as to what happened."

[32]

For these reasons, I would dismiss this ground of appeal.

(iii)

Uneven Scrutiny

[33]

Finally, the appellant submits that the trial judge failed to
    meaningfully address the frailties in the complainants evidence, while
    immediately seizing upon three areas of his testimony to conclude that he was
    lying.

[34]

To succeed on this argument, the appellant must establish that the trial
    judge applied different standards of scrutiny. It is not enough that a
    different trial judge assigned the same task on the same evidence could have
    assessed credibility differently:
R. v. Radcliffe
, 2017 ONCA 176, 347
    C.C.C. (3d) 3, at paras. 24-25, leave to appeal refused, [2017] S.C.C.A. No.
    294.

[35]

The trial judge was cognizant of the need to be even-handed in
    considering the evidence of the appellant and complainant. He expressly reminded
    himself of this obligation:

I start, as I must, with my focus
    on the [appellants] evidence, not to apply heightened scrutiny to this evidence,
    or to treat it differently from the evidence of the complainant, but because
    the [appellants] evidence is the focus of the first two steps in the
W.D.
analysis.

[36]

There is nothing in the trial judges consideration of the complainants
    evidence that suggests uneven scrutiny. It is evident that the trial judge
    carefully considered her evidence and assessed that she was credible. He found
    that she was forthright, direct, and unshaken on cross-examination. Further, he
    noted that her demeanour on her way out of the building after the alleged
    assault reflected her account of what happened.

[37]

The trial judges analysis focused on three areas of the appellants
    evidence: whether the complainant was intoxicated, whether the complainant was
    upset when she left the apartment, and the appellants explanation for his
    activities after the complainant left the apartment. Below, I will consider
    each area in turn to determine whether the appellant has established uneven
    scrutiny.

[38]

The trial judge found that the appellant went to great pains in his
    testimony to explain that the complainant was not intoxicated. Of course, whether
    the complainant was intoxicated to the point of incapacity to consent was not a
    live issue at trial because her capacity was conceded. The trial judge found
    that the appellants testimony was false because it was contradicted by video
    footage of the parties entering the apartment building, which he found clearly
    showed that the complainant was intoxicated.

[39]

This testimony was a significant factor in the trial judges credibility
    analysis of the appellant. He stated, [h]owever, the fact that the accused is
    denying something that is obviously true - giving obviously false evidence
    about the state of inebriation of the complainant - gives me great cause to
    concern the veracity of everything he said. On appeal, the appellant does not
    challenge that it was open to the trial judge to reach this conclusion. Thus,
    this cannot be an instance of uneven scrutiny.

[40]

Regarding the issue of the complainants mood when she left the
    apartment, the appellant testified that she was happy when she left him. The
    trial judge concluded that this evidence was incredible given the video footage
    from the elevator recording her departure from the building. He found that the
    footage showed that the complainant was clearly upset. This is not an example
    of uneven scrutiny. The trial judge was properly conducting a credibility
    analysis having regard to objective evidence.

[41]

Before turning to the third area of the appellants evidence relied on
    by the trial judge, it is necessary to consider the appellants other argument
    regarding the complainants state of mind. The appellant submits that another
    equally reasonable inference is that the complainant was overcome by regret
    about having sexual relations with the appellant after she left the apartment
    and that her emotions erupted in the elevator.

[42]

This alternative inference was never put to the complainant in
    cross-examination. It is difficult to fault the trial judge for failing to
    explore an alternative inference that finds no basis in the evidence. Further, the
    trial judge was entitled to make the finding that he did based on the record.
    The fact that another judge might have reached a different conclusion does not
    make it an instance of uneven scrutiny.

[43]

The final area of the appellants testimony is with respect to his
    actions after the complainant left the apartment. The video evidence showed
    that he went to the underground parking garage in the building at approximately
    3 a.m., about 15 minutes after the complainant left him. The appellant said
    that he was retrieving a key fob from his parents car. He was seen on camera
    briefly and was then off camera for approximately a minute. At trial, he
    testified that he was urinating in the garage at that point. The appellant then
    proceeded upstairs to the ground level. He said that he went outside for some
    air and spoke with the complainant, who was waiting for an Uber.

[44]

The Crown theory was that the appellant understood the impact of what he
    had done and went downstairs to seek out the complainant. The appellant denied
    this was the case. The trial judge accepted that the Crowns theory was more
    likely than the appellants account, which he found to be far-fetched and
    improbable. However, he stated that he could not rule out the possibility that the
    appellants account was true. Ultimately, the trial judge used this evidence as
    another factor, combined with his other findings, to conclude that the
    appellant was not credible.

[45]

Trial judges are required to look at all of the evidence and reach
    conclusions regarding credibility. Those conclusions attract a high degree of deference:
Vuradin
, at para. 11.

In this case, the trial judge
    properly engaged in a credibility analysis based on his assessment of the
    appellants evidence in its entirety. This is not a case of uneven scrutiny.

[46]

In summary, the trial judge carefully considered and evaluated the
    evidence of the complainant and the appellant. He provided clear and compelling
    reasons why he accepted the complainant's evidence and rejected the appellant's
    evidence. The record amply supported these credibility assessments. I am not
    satisfied that he scrutinized the evidence unevenly.

III.

Disposition

[47]

For the foregoing reasons, I would dismiss the appeal.

Released: C.W.H. November 26, 2019

C.W.
    Hourigan J.A.

I agree. K.
    van Rensburg J.A.

I agree.
    Thorburn J.A.