



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Feeney, 2014 ONCA 270

DATE: 20140404

DOCKET: C53298

Sharpe, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jonathan Feeney

Appellant

Brenda A. Lawson, for the appellant

G. Choi, for the respondent

Heard & released orally: April 1, 2014

On appeal from the judgment of Lois B. Roberts of the
    Superior Court of Justice dated January 20, 2011 allowing an appeal from a stay
    granted by Justice Sheila Ray of the Ontario Court of Justice, dated January18,
    2010.

ENDORSEMENT

[1]

The trial judge granted a stay of charges of impaired driving and
    driving over 80 pursuant to s. 11(b) of the
Charter
. The summary
    conviction appeal judge allowed an appeal, set aside the stay and ordered that
    the matter proceed to trial.

[2]

Leave to appeal is sought on the second ground in
R. v. R.R.
(2008),
90 OR (3d) 641; 234 CCC (3d) 463
(C.A.), namely,
    that the merits are strong and that leave should be granted because of the
    serious consequences for the appellant.

[3]

In our view, the merits of this appeal are not strong and leave to appeal
    should be refused. We reach that conclusion for the following reasons.

[4]

The appellant raises two points. The first is that both the trial judge
    and the summary conviction appeal judge erred in attributing four months from
    the first trial date, which was adjourned because of illness of a police
    officer, to the second trial date of November 9, 2010 as neutral because the
    case was not reached on November 9 and the trial was adjourned for a further
    two months. We disagree.

[5]

The case was not reached on November 9 because the court was overbooked.
    The additional delay period caused as a result of this second adjournment, namely,
    two months until the date the case was reached, was attributed by both the
    trial judge and the summary conviction judge to institutional delay. That
    attribution dealt with the delay caused by overbooking and there was no reason
    to allocate any of the period before the November 9 trial date as institutional
    delay. The concurrent findings of both the trial judge and the summary
    conviction appeal judge on this point were reasonable and do not give rise to
    an arguable ground of appeal.

[6]

The appellant also argues that the summary conviction appeal judge erred
    with respect to the prejudice he claims he suffered because of having to incur
    additional legal fees due to the adjournments of his trial. Again we disagree.
    The summary conviction appeal judge accepted the trial judges finding that
    there was some prejudice to the appellant, but she concluded that, as a matter
    law, a balancing of interests was required. As this was at best a borderline
    case of delay under s. 11(b) of the
Charter
, the prejudice involved as
    a result of additional legal costs was not sufficient to override the publics
    interest in having a trial on the merits in this matter.

[7]

Accordingly, for these reasons, leave to appeal the summary conviction
    appeal judges order is dismissed.

Robert J. Sharpe J.A.

S.E. Pepall J.A.

M.H. Tulloch J.A.


