



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grant, 2021 ONCA 519

DATE: 20210715

DOCKET: M52394

(C69275)

Brown
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Responding
    Party

(Respondent)

and

James
    Jahkyn Grant

Applicant

(Appellant)

George Singh, for the applicant

James Clark, for the responding party

Heard: June 17, 2021 by video conference

ENDORSEMENT

I.

OVERVIEW

[1]

The applicant, James Jahkyn Grant, applies for
    his release pending his appeal from his conviction by a jury of importing into
    Canada a controlled substance, namely 2.5 kilograms of cocaine. The cocaine was
    found hidden in a piece of the applicants luggage when he attempted to clear
    customs at Pearson International Airport upon his return from Aruba.

[2]

The applicant was convicted by a jury on August
    13, 2019. Sentence was passed on June 17, 2021. The sentencing judge imposed a
    custodial sentence of 4.5 years. After deducting approximately one year for
    pre-trial custody, the resulting sentence to be served is 3.5 years.

[3]

The main grounds of appeal asserted by the
    applicant on his appeal are:

(i)

The trial judge inadequately charged the jury on
    the requisite knowledge to establish the offence;

(ii)

The trial judge failed to properly answer a question asked by the
    jury during their deliberations that sought to clarify some evidence and failed
    to permit the defence to properly address the evidence;

(iii)

On a pre-trial application that sought to stay the charge by reason
    of the violation of the applicants rights under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
, Justice Harris erred in calculating the
    total amount of defence delay; and

(iv)

On a subsequent pre-trial
Charter
application, Justice André
    failed to address various factual inconsistencies in the evidence, resulting in
    his erroneous dismissal of the application.

[4]

The Crown opposes the application for three
    reasons: (i) the proposed grounds of appeal are devoid of merit; (ii) the
    applicant is unlikely to surrender into custody; and (iii) the public interest
    favours his detention as the reviewability interest in his appeal is weak while
    the enforceability interest points strongly in favour of his ongoing detention.

[5]

Since only a few transcripts of the pre-trial
    proceeding were filed on this application, the applicant relies primarily upon
    the written reasons of the application judges, the charge to the jury, and the
    reasons for sentence. The applicants counsel, Mr. George Singh, has filed an
    affidavit opining on the merits of the appeal.
[1]
Mr. Singh also appeared as lead counsel on this application. Consequently, I am
    obliged to treat his affidavit as a form of argument, not opinion evidence.

[6]

The applicant proposes release with bail of
    $10,000, without deposit, with two sureties, his wife and sister. Both acted as
    his sureties while on pre-sentence interim release.

II.

NOT FRIVOLOUS:
Criminal Code

s
. 679(3)(
a
)

[7]

The bar for establishing that an appeal is not
    frivolous is very low:
R. v. Oland
, 2017 SCC 17, [2017] 1
    S.C.R. 250, at para. 20. As described by Watt J.A. in
R. v. Manasseri
,
    2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: An appeal is not frivolous if
    the proposed grounds of appeal raise arguable issues. An applicant need not
    establish a likelihood, much less a certainty of success on appeal, but must be
    able to point to a viable ground of appeal that would warrant appellate
    intervention if established. The purpose of the not frivolous threshold is
    to require the applicant to demonstrate that the appeal has some merit. If
    this were not so, the appellate process could be abused by those intent on
    forestalling the execution of a custodial sentence:
R. v. T.S.D
.,
    2020 ONCA 773, at para. 24.

[8]

I shall assess each of the applicants grounds
    of appeal against this standard.

A.      Charge to the jury

[9]

As his first ground of appeal, the applicant
    submits the trial judge inadequately charged the jury on the requisite
    knowledge required to establish the offence. According to a written copy of
    part of the charge, when instructing the jury on the elements of the offence
    the trial judge stated:

The Crown is required to prove that [the applicant]
    actually knew or was aware that the substance was a controlled substance, in
    this case cocaine. [The applicant] does not have to know the technical term for
    the substance but must know that it is a controlled substance.

[10]

As I understand the applicants submission, he
    does not take issue with that part of the charge. Instead, he submits that when
    the trial judge summarized the Crowns position for the jury he referred
    several times to what the applicant must have known. The applicant submits
    that without a correcting or clarifying instruction, those references would
    have misled the jury about the applicable legal requirements for knowledge.

[11]

The written copy of the charge included in the
    record does not contain the judges summary of the Crowns position. Nor does
    the record contain the transcript of the charge, pre-charge conference or any
    post-charge objections.
[2]
Consequently, the applicant has failed to file the evidentiary record necessary
    to assess whether this ground of appeal is not frivolous.

B.      Trial judges response to a question
    from the jury

[12]

At trial, the applicant testified that he had
    stayed at a particular resort for his entire stay in Aruba. During their
    deliberations, the jury asked a question about a document that showed the
    applicant stayed at the resort for a shorter period of time.

[13]

The applicant submits the trial judge did not
    permit any opportunity to clarify the answer he provided to the jury nor the
    ability for defence nor the crown to solicit a proper answer to the question.

[14]

The record does not contain the transcript of
    this portion of the trial. Instead, it contains what appears to be the
    reporters partial annotation of the audio recording.
[3]
The document contains less
    than 20 lines of annotation for a discussion between the trial judge and
    counsel that lasts about 19 minutes. Since it does not provide the entirety of
    the discussion, I cannot assess the legal adequacy of the trial judges
    approach and, therefore, cannot assess whether this ground of appeal is not
    frivolous.

C.      The s. 11(b) ruling

[15]

Justice Harris heard the s. 11(b) application on
    November 26, 2018. At that point of time, the total delay from the date the
    applicant was charged, January 25, 2015, to the prospective trial date, January
    14, 2019, was just short of four years, exceeding the presumptive ceiling of 30
    months established by
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. In
    the result, the application judge attributed 22 months of the delay to defence
    conduct or waiver, leaving a net delay of about 26 months, which fell under
Jordan
s
    presumptive ceiling: 2018 ONSC 7260.

[16]

The applicants notice of appeal states that Justice
    Harris erred in calculating the total amount of delay for the purposes of
    11(b) application based on a misinterpretation of the facts presented in
    support of the delay in the matter being heard within a reasonable time as
    permitted by law. Counsel did not elaborate on this ground of appeal in his
    affidavit of merits.

[17]

In oral submissions counsel submitted that the
    particulars of this ground of appeal are: (i) there was an element of bias on
    the part of the application judge as he described several instances of conduct
    by the applicant as the particular brand of juridical nihilism espoused by the
    applicant; (ii) the trial judge considered some affidavit evidence filed by
    the Crown without affording the defence an opportunity to cross-examine on it;
    and (iii) the trial judge incorrectly calculated delay attributable to defence
    conduct or waiver. Counsel submitted that a fair analysis of the events would
    conclude that the applicant was not responsible for any of the delay.

Allegation of bias

[18]

As described by Justice Harris, at many steps
    along the way the applicant challenged the authority of the court, as well as
    that of police officers who attempted to fingerprint him. The application judge
    commented: In his many appearances, the applicant often referred to himself as
    an indefinable spirit created by flesh and blood and as an aboriginal sovereign
    on his land. The application judges reasons reproduce portions of the
    transcripts of some of the proceedings in which such conduct occurred. The
    applicants conduct, as disclosed in those transcripts, led the application
    judge to state, at paras. 20 and 21:

With respect to a number of the incidents, the
    applicant and his counsel blame others. I am very skeptical. On the contrary,
    from the many conflicts which have occurred with the full gamut of personnel in
    the administration of justice, including judges, court officers, police
    officers, and lawyers, a portrait of the applicant emerges. The applicant is
    not merely egocentric. He does not see himself so much as the centre of the
    universe as a separate and complete universe on to himself. He refuses to
    acknowledge the authority of the state over him. The applicant is a judicial
    nihilist. This is a particularly convenient stance for a man charged with a
    serious criminal offence.

For the purpose of clarity, although it should
    be unnecessary to say, there was not a scintilla of sense let alone legal merit
    to any of the applicants positions with respect to the authority of judicial
    officers over him. The applicant is subject to the same authority and jurisdiction
    of the court as any other accused person. To take one of the more egregious
    examples, failing to appear because he feels hard done by in the system cannot
    be tolerated.

[19]

The applicant contends that the application
    judges use of the term judicial nihilist displays bias against him. I am not
    persuaded that this ground of appeal surpasses the not frivolous standard.
    Other courts have employed strong language to describe the conduct of those who
    act in court in ways similar to those employed by the applicant:
R. v.
    Cassista
, 2013 ONCJ 305;
R. v. Duncan
(2012), 2013 ONCJ 160; and
Meads
    v. Meads
, 2012 ABQB 571, 74 Alta. L.R. (5th) 1. In any event, a reading of
    the application judges reasons discloses that he took an evidence-based
    approach to the arguments advanced by the applicant on his s. 11(b) motion.

The treatment of affidavits filed
    by the Crown just prior to the s. 11(b) hearing

[20]

The transcript of the 11(b) hearing reveals that
    the application previously had been adjourned, following which the applicant
    filed supplementary materials. Just before the November 26, 2018 hearing date,
    the Crown filed some responding materials. The application judge acceded to
    defence counsels request for a few hours to review the Crowns materials.

[21]

Upon resuming, the application judge proposed
    that the hearing proceed, with the issue of cross-examination on the Crowns
    supplemental affidavits left to another day:

THE COURT: Why cant we proceed here today and
    leave the affidavit issue for another day? We can argue everything today as is
    and then we come to cross examine on the affidavits at some other date.

MR. SINGH: Im prepared to do that Your
    Honour. Just a moment, let me just confer with my client. Yes Your Honour, the
    preference is to be able to complete today. However, if thats the only way
    this matter will proceed we do want to start today. We dont want to delay any
    further.

[22]

The parties then proceeded to make their
    submissions on the 11(b) application. At the conclusion of the submissions,
    defence counsel again raised the issue of the Crowns supplemental affidavits.
    Defence counsel requested that the court not consider certain affidavits unless
    cross-examination was permitted, to which the application judge responded:

THE COURT: Okay, Ill consider that long with everything
    else. And Ill reserve then and if I need you to come back Ill let you know.

[23]

The court then permitted the applicant to file
    several videos of his interaction with court security and institution officers
    that had not previously been filed as part of his application materials.

[24]

The reasons of the application judge disclose
    that he did not find it necessary to consider the affidavits and determine what
    in fact had taken place on certain occasions. He wrote, at para. 19:

I have been asked to determine what actually
    occurred during some of the incidents during the movement of this case through
    the system such as in the flagpole incident for example. In cases in which the
    conduct in question is not captured on the record, a motions judge is in no
    position to hold mini-trials to resolve factual disputes concerning the
    applicants many conflicts with those in the administration of criminal
    justice. Furthermore, such an approach would be contrary to the letter and
    spirit of
Jordan
. The Supreme Court has concluded that the
    hearing of 11(b) motions should be streamlined just as the substantive criteria
    have been from the previous
Askov/Morin
structure.

[25]

Instead, the application judge examined five
    periods of delay that the Crown contended were either defence delay or waiver. It
    is apparent from the reasons that the application judge did not rely on the
    contested affidavits to determine which periods of delay were attributable to
    defence conduct or waiver. This ground of appeal therefore does not exceed the
    not frivolous threshold.

Errors in attributing delay to the defence

[26]

The next aspect of this ground of appeal alleges
    that the application judge wrongly attributed time to defence delay.

[27]

The longest such period of time ran from April
    15, 2016 until January 31, 2017. The application judge described the events at
    para. 26:

After leaving the court
    twice in the midst of the March 23, 2016 appearance before Justice Durno and
    being warned that an arrest warrant would be issued, the applicant was required
    to reattend on April 15, 2016. On April 1, 2016 he was served with a pre-trial
    conference form but was reluctant to accept service. He failed to attend on
    April 15, 2016 and a bench warrant was issued for his arrest. He was not
    arrested until the New Year and appeared before the court January 31, 2017.

[28]

The applicants position was that the delay from
    April 15 until November 16, 2016 should be the shared responsibility of the
    Crown and defence, with the remainder treated as institutional delay because
    the applicant was in custody on another matter on November 16, 2016. According
    to the applicant, the primary fault lay with the authorities for not executing
    the arrest warrant more quickly.

[29]

The application judge rejected that submission
    writing, at para. 28:

These arguments are totally devoid of merit
    and I dismiss them out of hand.  It was the applicants obligation to attend
    court and, having missed it, it was his obligation to bring his failure to
    appear to the attention of the authorities. There is not one iota of evidence
    that the police were negligent. The burden falling on the applicant, this
    argument fails. This time period is the responsibility of the defence:
Jordan
at para. 63.

[30]

The second significant period of time, which the
    application judge also characterized as delay attributable to the defence, was a
    period of almost five months: February 2, 2017  April 25, 2017; and May 25,
    2017  July 28, 2017. During the first period, the applicant was attempting to
    retain a lawyer; during the second, the Crown and court were prepared to set a
    trial date but counsel for the applicant was not.

[31]

On appeal, the applicant will argue that the
    application judge erred in attributing those periods of time to defence delay
    instead of inherent delay. I recognize that the characterization of periods of
    delay, and the ultimate decision concerning the reasonableness of a period of
    delay, is reviewable on a standard of correctness; the underlying findings of
    fact are reviewable on a standard of palpable and overriding error:
R. v.
    Konstantakos
,
2014 ONCA
    21
, 315 O.A.C. 123, at para.
5
;
R. v. Williamson
,
    2014 ONCA 598, 324 O.A.C. 231, at para. 29, affd 2016 SCC 28, [2016] 1 S.C.R.
    741;
R. v. Pauls
, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, affd
    2021 SCC 2, 453 D.L.R. (4th) 189.

[32]

Nevertheless, as to the April 15, 2016 to
    January 31, 2017 period of time, one condition of the applicants interim
    release was that he would attend[] thereafter as required by the court in
    order to be dealt with according to law. It appears uncontested that the applicant
    did not do so. The case law recognizes that the allocation of responsibility
    for delay resulting from an accuseds failure to appear in accordance with
    terms of release involves, in part, a consideration of the knowledge of the
    Crown about the accuseds whereabouts and whether the accuseds inability to
    appear was due to reasons beyond his control:
R. v. J.K.
, 2021 ONCA
    256, 155 O.R. (3d) 427, at paras. 38-45. Here, however, the applicant has not
    provided any evidence on those matters that would enable me to assess the
    strength of the application judges conclusion that the applicants arguments
    are totally devoid of merit.

[33]

As to the other periods of time,
Jordan
includes within delay attributable to the defence delay caused solely by the
    conduct of the defence and delay caused when the court and Crown are ready to
    proceed but the defence is not.

[34]

In those circumstances, on the evidentiary
    record before me I conclude that this ground of appeal does not surpass the
    not frivolous threshold.

D.      Errors in dismissing the 2019
    pre-trial stay application

[35]

A few months prior to trial, the applicant
    sought a stay of the charge on the basis that on numerous occasions state
    agents violated his ss. 2, 7, 8, 9, 10, 12, and 15
Charter
rights. The
    application took 11 days to argue. Justice André dismissed the application:
    2019 ONSC 3616.

[36]

In his notice of appeal the applicant states
    that
Justice André
erred
    in dismissing the application by not addressing the various factual
    inconsistencies of the evidence put forth in the Crowns case. Applicants
    counsel did not elaborate on this ground in his affidavit of merits. In oral
    submissions, counsel stated that the particulars of this ground of appeal were:
    (i) a reasonable apprehension of bias on the part of Justice André; (ii) some officers
    admitted to lying but the application judge made no comment; and (iii) witness
    dishonesty.

[37]

Justice Andrés reasons run some 30 pages. He
    examined in detail each of the eight incidents in which the applicant alleged
    that his
Charter
rights had been violated by a judge, police officer
    or court security officer. The allegations against the judges also included
    allegations of reasonable apprehension of bias. Justice André gave extensive
    reasons why he did not find a
Charter
violation in any of the
    incidents. The applicants grounds of appeal submitted before me lack
    sufficient particularity to enable an evidence-based assessment of their
    merits:
Oland
, at para. 45. Since the applicant bears the burden of
    establishing that his appeal is not frivolous, I am not satisfied that he has
    met that burden for this ground of appeal.

E.      Conclusion

[38]

For the reasons set out above, based on the
    record filed on this application I am not satisfied that the applicant has
    established that his appeal is not frivolous.

[39]

Although that is sufficient to determine this
    application given the conjunctive nature of the s. 679(3) criteria, I will
    consider the other two criteria.

III.

SURRENDER INTO CUSTODY:
CRIMINAL CODE

s
. 679(3)(
b
)

[40]

The second criterion the applicant must
    establish is that he will surrender himself into custody in accordance with the
    terms of the release order. I am not satisfied that the applicant has satisfied
    this criterion for the following reasons.

[41]

First, as mentioned above, the applicant failed
    to attend court on April 15, 2016, contrary to the terms of his interim release
    dated January 30, 2015. A bench warrant was issued. He was arrested early the
    following year and appeared before the court on January 31, 2017. The applicant
    does not address this issue in his supporting affidavit. Although his proposed
    sureties depose that they had no issues with ensuring the applicant complied
    with his conditions of interim release, they were acting as sureties during the
    time the applicant failed to appear in 2016 and 2017. I therefore give little
    weight to their present assurances.

[42]

Second, the applicant provided no information in
    his supporting affidavit about any employment or source of income for the
    period prior to the hearing of his appeal. In his reasons, the sentencing judge
    wrote that the applicant reported that he was a principal and administrator of
    Rouge Ontario Cathedral Kynship but did not provide any proof of income. Simply
    put, the applicant has not provided the court with evidence of a concrete
    release plan.

[43]

Third, I am concerned about the applicants
    history of aggressively challenging the authority of the court in the criminal
    proceeding against him. While the applicant did not repeat his failure to
    attend court following his arrest in January 2017, my concern about his failure
    to comply with a term of his interim release is compounded by the observation
    made by MacPherson J.A. in
R. v. Patterson
(2000), 135 O.A.C. 324
    (C.A.), at para. 11, that flight before trial and flight after conviction and
    the imposition of a serious custodial sentence are very different scenarios:
    When optimism and hope recede, thoughts of flight might well advance. I
    appreciate that the applicant has deposed that he has five children whom he
    supports and is active in their daily lives. However, his affidavit lacks
    concrete details about his release plans.

[44]

Taken together, these factors lead me to
    conclude that a real risk exists that the applicant would not surrender himself
    into custody in accordance with the terms of a release order.

IV.

PUBLIC INTEREST:
CRIMINAL CODE

s
. 679(3)(
c
)

[45]

The public interest criterion consists of two
    components: public safety and public confidence in the administration of
    justice:
Oland
, at para. 23.

[46]

There is no suggestion in the present case that
    the applicants release would jeopardize public safety.

[47]

The public confidence criterion requires
    balancing several factors: the seriousness of the offence; the strength of the
    grounds of appeal; public safety; and flight risks:
Oland
, at para. 47.

[48]

Given my conclusion above on the first
    criterion, the applicants grounds of appeal do not clearly surpass the not
    frivolous criterion:
Oland
, at para. 44. By contrast, the
    enforceability interest in the present case is strong: the applicant has been
    convicted of a very serious criminal offence and there is a risk that he would
    not surrender into custody. In my view, the enforceability interest far
    outweighs the reviewability interest:
Oland
, at para. 50.

[49]

I conclude that the applicant has not
    established that his detention is not necessary in the public interest.

DISPOSITION

[50]

For these reasons, I dismiss the application.

[51]

However, given the applicants family situation,
    I am prepared to give directions pursuant to
Criminal Code
s. 679(10)
    to expedite the hearing of this appeal. If the applicant perfects his appeal by
    August 31, 2021, I direct that the hearing of his appeal take place no later
    than December 17, 2021, with 2.5 hours of oral argument allocated for the
    appeal.

David
    Brown J.A.





[1]

Although
    the copy of the affidavit included in the application record contains the entirety
    of counsels treatment of the grounds of appeal, it is missing a few
    introductory pages. Two efforts by the courts Executive Legal Officer to
    obtain from applicants counsel copies of the missing pages proved
    unsuccessful.



[2]
The applicant
    filed summary annotations of some portions of the trial leading up to the
    charge. This document did not contain any active links to an audio recording.
    In any event, it was the obligation of the applicant to file a proper
    transcription of the relevant portions of the trial on this application.



[3]

Again,
    this
document did not contain any active links to an audio
    recording.


