



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mansour, 2020 ONCA 586

DATE: 20200918

DOCKET: M50725 (C68451)

Feldman, van Rensburg and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Mansour

Applicant

Jon Doody and Anthony Paciocco, for the
    applicant

Tracy Kozlowski, for the respondent

Heard: July 17, 2020 by video
    conference

On appeal from the order of Justice Michelle
    OBonsawin of the Superior Court of Justice, dated July 12, 2019, with reasons
    reported at 2019 ONSC 4150, allowing an appeal from the stay of proceedings
    entered on December 7, 2018 by Justice Célynne S. Dorval of the Ontario Court
    of Justice.

REASONS FOR DECISION

[1]

The applicant was charged with drug-impaired
    driving in October 2016. In December 2018, the trial judge held that his right
    to be tried within a reasonable time under s. 11(b) of the
Canadian Charter
    of Rights and Freedoms
had been infringed and stayed the proceedings. The
    Crown appealed. The summary conviction appeal judge allowed the Crowns appeal,
    set aside the stay of proceedings, and ordered a new trial.

[2]

The applicant now seeks leave to appeal to this
    court. With the consent of the parties, given that trial dates are set in this
    matter for October 2020, the panel heard the arguments on leave and the merits
    of the appeal together. For the following reasons, the application for leave to
    appeal is dismissed. Accordingly, we do not reach the merits of the appeal.

A.

Procedural History

[3]

The first few months after the applicant was
    charged with drug-impaired driving in October 2016, were taken up with the
    applicants requests for disclosure.

[4]

In February 2017, the applicants trial counsel
    was appointed to the bench. In a court appearance on February 22, 2017, the applicants
    counsels agent requested an adjournment to review disclosure and reassign the
    file to other counsel.

[5]

At the next court appearance on March 1, 2017,
    the Crown suggested that trial dates should be set. The court offered March 7,
    2017, for the judicial pre-trial, but counsels agent asked for a later date,
    to allow new counsel to get up to speed on the file. The judicial pre-trial
    took place on March 21, 2017.

[6]

Trial dates were then set for May 7 and 8, 2018.
    The applicant was unavailable for April 2018 dates that were offered by the
    court. In December 2017, the Crown brought an application to set earlier trial
    dates, but the applicant was unavailable for February and March 2018 dates then
    offered by the court.

[7]

On October 23, 2017, the applicant had asked for
    disclosure of the drug recognition experts rolling logs (DRE logs). DRE logs
    contain a record of every evaluation the DRE has been involved in before or
    after becoming certified as an expert. The Crown refused to disclose the DRE
    logs, arguing that they were not relevant and that their disclosure was
    prohibited by s. 258.1 of the
Criminal Code
, R.S.C. 1985, c. C-46
    (which has since been repealed) and would amount to a criminal offence.

[8]

The applicant brought a motion for disclosure of
    the DRE logs by the Crown and the Ottawa Police Service, which was heard on
    April 19, 2018. On April 30, 2018, the trial judge ordered the disclosure.

[9]

On May 7, 2018, the day the trial was scheduled
    to begin, the Crown advised the applicant that it intended to challenge the
    disclosure order by bringing an application for
certiorari
. The Crown
    refused to disclose the DRE logs at the same time as bringing the
certiorari
application, given its position that doing so was prohibited by the
Code
.

[10]

The Crowns
certiorari
application was
    heard in May and July 2018. The
certiorari
judge took the decision
    under reserve.

[11]

In the meantime, the applicant applied to the
    trial judge for a stay of proceedings, alleging that his right to be tried
    within a reasonable time had been infringed because the delay exceeded the
    18-month presumptive ceiling prescribed in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631. The trial judge refused to hear the s. 11(b) application
    in September 2018 because the
certiorari
decision was outstanding. The
    application was adjourned to October 19, 2018. New trial dates were set for
    November 13 and 14, 2018.

[12]

On October 11, 2018, the
certiorari
judge dismissed the Crowns application for
certiorari
, upholding the
    disclosure order. The Crown served a notice of appeal of the
certiorari
decision on November 5, 2018 and refused to disclose the DRE logs to the applicant
    pending the appeal, for the same reasons outlined above. The Ottawa Police
    Service likewise appealed.

[13]

Through inadvertent error, the s. 11(b)
    application did not proceed on October 19, 2018, but was instead adjourned to
    November 13, 2018, the first scheduled day of trial.

[14]

The trial judge heard the s. 11(b) application
    on November 13, 2018, and on December 7, 2018, granted the application and
    stayed the proceedings.

[15]

The Crown appealed. Before the appeal was heard,
    this court released its decisions in
R. v. Stipo
, 2019 ONCA 3, 144
    O.R. (3d) 145, and
R. v. Tsega
, 2019 ONCA 111, 144 O.R. (3d) 561. In
Stipo
,
    this court held that DRE logs are relevant and should be disclosed by the
    Crown, thereby resolving the disclosure dispute in this case in the applicants
    favour. In
Tsega
, this court provided guidance on the proper treatment
    of delay caused by applications for extraordinary remedies, including
certiorari
.

[16]

The summary conviction appeal judge had the
    benefit of both these decisions in assessing how to treat the
certiorari
delay here, which comprised the bulk of the overall delay. The summary
    conviction appeal judge allowed the Crowns appeal, set aside the stay of
    proceedings, and remitted the matter back to the Ontario Court of Justice for
    trial.

B.

Discussion

[17]

The test for leave to appeal in summary
    conviction proceedings is set out in in
R. v. R.(R.)

(2008), 90
    O.R. (3d) 641, at para. 32:

Leave to appeal may be granted where the
    merits of the proposed question of law are arguable, even if not strong, and
    the proposed question of law has significance to the administration of justice
    beyond the four corners of the case. Leave to appeal may also be granted where
    there appears to be a clear error even if it cannot be said that the error
    has significance to the administration of justice beyond the specific case.

[18]

The applicant asserts that the summary
    conviction appeal judge erred in calculating delay in three ways:

1.
By deducting the time for the Crowns
certiorari
application regarding the disclosure of the DRE logs;

2.
By using November 14, 2018 as the end-date for trial; and

3.
By increasing by ten days the period of defence delay to
    accommodate a change in counsel when his first lawyer was appointed to the
    bench.

[19]

All three issues are case-specific and do not
    have significance to the administration of justice beyond the four corners of
    this case. With respect to issue (1), we see no error in the summary conviction
    appeal judges application of the rule in
Tsega
for determining how to
    treat
certiorari
delay. Nor do we accept that there was a clear
    error in the calculation of delay for issues (2) and (3).

(1)

Certiorari
Delay

[20]

First, we address the summary conviction appeal
    judges treatment of the delay caused by the Crowns
certiorari
application and appeal of that ruling. The trial judge considered this issue
    before this courts decision in
Tsega
was released in February 2019.
    She included the
certiorari
delay within the overall calculation of
    delay on the basis that the applicant remained charged during that period and
    was entitled to his s. 11(b) right. She went on to find that in the event she
    was in error, the
certiorari
delay was not an exceptional
    circumstance. She viewed the Crowns decision to pursue the
certiorari
remedy when the issue was soon to be resolved by this court in
Stipo
as a tactical or policy decision taken without considering the applicants
    right to a trial within a reasonable time, and that it went beyond mere
    complacency towards delay.

[21]

By contrast, the summary conviction appeal judge
    had the benefit of this courts decision in
Tsega
, which set out at
    para. 82 the test for determining whether
certiorari
delay should be
    counted in the overall delay or excluded as an exceptional circumstance:

[I]n determining whether delay caused by a
    Crown application should be excluded from the delay calculation, the reviewing
    judge must recognize the Crowns discretion to take such steps and limit the
    analysis to a consideration of whether the Crowns actions were frivolous,
    undertaken in bad faith, or executed in a dilatory manner. A frivolous
    application is one which has no arguable basis. Again, by conducting the
    analysis on this basis, the court is fulfilling its
Jordan
imposed
    obligation of ensuring that all justice participants are acting responsibly and
    ensuring that the accuseds right to be tried within a reasonable time is
    respected.

[22]

The summary conviction appeal judge had also
    previously heard and dismissed the Crowns
certiorari
application in
    this case. She concluded, at paras. 23-24 that:

In this matter, there is no evidence to
    support a finding that the Crowns actions were frivolous, undertaken in bad
    faith, or executed in a dilatory manner. I agree with the Crowns argument that
    the consequence of compliance with these orders, if it was in error, was a
    commission of a criminal offence contrary to s. 258.1(5) of the
Code
.
    The third party [Ottawa Police Service] also sought a review which led to a
    delay which was inevitable regardless of the Crowns position.

The Crown was unsuccessful in the
certiorari

proceedings. However, the question to be considered is not whether the
    Crown was successful in its
certiorari

proceedings, but rather
    whether it was reasonable for the Crown to pursue this remedy. At this period
    of time,
Stipo

had been argued before the Court of Appeal but a
    decision had not yet been rendered. The court only issued its reasons in
Stipo

on January 7, 2019. Overall, I find the Crowns actions were reasonable and
    they were neither frivolous, undertaken in bad faith, nor executed in a
    dilatory manner.

[23]

On this application for leave to appeal, the
    applicant raises three proposed questions of law with respect to the
certiorari
delay: whether the Crown could have provided the logs and pursued its
certiorari
application at the same time; whether the delay was inevitable when a third
    party state actor was also challenging the production of the logs as third
    party records; and whether the Crown was acting in a dilatory manner.

[24]

We see no error of law committed by the summary
    conviction appeal judge. She was fully aware of the facts and the arguments and
    applied the
Tsega
criteria directly. Even if there is a question of
    law raised here, it is not of significance beyond this case.

[25]

Finally, the applicant challenges the
    determination by the summary conviction appeal judge that the entire period of
    192 days from the date the Crown advised that it would pursue a
certiorari
application (May 7, 2018) to the end-date of trial (November 14, 2018) should
    be deducted. He argues that the time should only run from the actual date of
    the application (May 9, 2018) to the date of the
certiorari
decision
    (October 11, 2018), and from November 5, 2018 (the day the Crown appealed the
certiorari
decision) to November 14, 2018.

[26]

This issue again does not warrant granting leave
    to appeal. It has no significance beyond this case, and we are not persuaded
    that the summary conviction appeal judges calculation of the
certiorari
-related
    delay reveals any clear error of law. During the whole period, the
certiorari
proceedings were still ongoing, the Crown was still refusing to disclose, and
    the matter could not have moved forward for those reasons. This was reasonably
    calculated as the time taken for extraordinary remedies and appeals therefrom;
Tsega
, at paras. 77,79.

(2)

End-Date of Trial

[27]

Second, we address the issue of the anticipated
    end-date of trial. The submission is that the summary conviction appeal judge
    erred in identifying November 14, 2018 as the end-date for the purpose of
    calculating the overall delay because that date was not the actual or
    anticipated end of trial:
Jordan
, at para. 49. The trial did not
    end on this date, and neither of the parties anticipated that it would.

[28]

There is no clear error here. Both before the
    trial judge and the summary conviction appeal judge, the applicant relied on
    November 13, 2018 as the applicable end-date, arguing that the delay as of that
    point was unreasonable.

[29]

The applicants trial was scheduled to take
    place on November 13 and 14, 2018. The trial did not proceed on November 13 and
    14, 2018 because of the continuing dispute about the Crowns obligation to
    disclose the DRE logs. By November 13 and 14, 2018, this disclosure was outstanding.
    The applicant was unwilling to proceed to trial without the DRE logs, and the
    trial judge declined to force the applicant to do so. Instead, on November 13,
    2018, the parties made oral submissions on the s. 11(b) application.

[30]

The trial judge used February 4 and 5, 2019 as
    the end-dates in calculating the overall delay. She incorrectly assumed that
    the trial had been scheduled for February 2019. The applicants position was
    that the ceiling had been breached as of the date of argument of the s. 11(b)
    application. November 13, 2018. Counsel used that date as the end-date for the
    purpose of calculating the overall delay, arguing that, although November 13,
    2018 was clearly not the end of the trial  thats the date were going to
    work with.

[31]

On appeal, the applicant flagged for the summary
    conviction appeal judge that the trial judge had erred in relying on February 4
    and 5, 2019 in calculating the overall delay. The summary conviction appeal
    judge selected November 14, 2018 as the anticipated end of trial, noting, at
    para. 13, the applicants concession that the trial judge erred by listing the
    anticipated trial dates as February 4 and 5, 2019, while the actual trial dates
    were set for November 13 and 14, 2018.

[32]

The appropriate end-date was not argued before
    the summary conviction appeal judge in oral submissions. In written
    submissions, the applicant again relied on November 13, 2018 as the end-date
    for the purpose of the overall delay calculation.

[33]

Throughout the litigation below, the parties
    accepted that the appropriate end-date for the purpose of calculating the
    overall delay was November 13, 2018, and while the applicant observed that the
    trial did not in fact end in November 2018, counsel did not argue that the
    summary conviction appeal judge should rely on any other date.

[34]

Moreover, we note that the applicant has not
    proposed any other date that this court should rely on as the end-date for the
    purpose of calculating the overall delay (other than to suggest before this
    court a Crown-friendly estimate of adding an additional 30 days of delay).

[35]

The absence of any identifiable end-date for the
    trial in this case reflects the fact that the applicant chose to proceed with
    his s. 11(b) application at a time when the procedural future of the matter was
    uncertain, because the Crowns
certiorari
appeal was pending. The
    applicant argued that the delay was already unreasonable as of the date of the
    application. Given the applicants position before the trial judge and the
    summary conviction appeal judge, and the complex procedural history of the
    matter, it would not have been appropriate for the summary conviction appeal
    judge, and is not appropriate for this court, to speculate when the applicants
    trial might have concluded had the charge not been stayed.

[36]

In these circumstances, given the positions of
    the parties before the trial judge and the summary conviction appeal judge, the
    summary conviction appeal judge did not make a clear error in relying on
    November 14, 2018, as the end‑date for the purpose of calculating delay.

(3)

Delay Occasioned by the Appointment of Counsel

[37]

It is unnecessary to address the merits of the
    applicants next argument, that the summary conviction appeal judge erred by
    disturbing the trial judges quantification of delay for when new counsel came
    on board (increasing the delay from 14 to 24 days). Standing alone, this
    ten-day period is insufficient to affect the result. Given our conclusion that
    leave should not be granted on the
certiorari
and end-date issues,
    even if the summary conviction appeal judge erred in interfering with the trial
    judges characterization of these ten days, that would not affect the result.
    The summary conviction appeal judge identified 515 days of net delay. The
    applicant argues for a stay only on the basis that the delay exceeded the
    presumptive ceiling of 18 months (which is 547 days). Adding ten days to the
    net delay would not put this matter over the ceiling.

C.

Disposition

[38]

For these reasons, the application for leave to
    appeal is dismissed.

K. Feldman
    J.A

K. van
    Rensburg J.A.

J.A. Thorburn
    J.A.


