



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khou, 2019 ONCA 189

DATE: 20190311

DOCKET: C63819

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nao Khou

Appellant

David Parry, for the appellant

Katie Doherty, for the respondent

Heard: March 4, 2019

On appeal from the convictions entered by Justice Mavin
    Wong of the Ontario Court of Justice on October 6, 2016, with reasons reported
    at 2016 ONCJ 865, and from the sentence imposed on December 6, 2016.

REASONS FOR DECISION

[1]

The appellant appeals his convictions on three
    counts of fraud over $5,000  and possession of property obtained by crime over
    $5,000, contrary to ss. 380(1)(a) and 354(1) of the
Criminal Code
,
    R.S.C. 1985, c. C-46. He also seeks leave to appeal his custodial sentence of
    two years less a day.

[2]

He appeals his conviction on the sole ground
    that the trial judge erred by dismissing his s. 11(b) application. He abandoned
    the ground of appeal relating to the role of
amicus
prior to the
    hearing of the appeal.

[3]

The appellant was arrested and charged on
    September 30, 2013. Representing himself, he was arraigned on March 3, 2015,
    and elected trial in the Ontario Court of Justice. After making extensive
    inquiries, the trial judge determined that the appellant was completely
    unprepared to represent himself. On March 4, 2015, she adjourned the trial so
    that the appellant could reapply for legal aid and for the appointment of
amicus
.
Amicus
was appointed on March 23, 2015 and the trial was set to resume
    on October 19, 2015. On October 19, 2015, it was determined that the
    interpreter in attendance was unable to interpret for the trial. Consequently,
    the trial was further adjourned and resumed on November 30, 2015. The trial comprised
    13 days and concluded on July 19, 2016.

[4]

The total delay in the case greatly exceeded the
    presumptive ceiling of 18 months for provincial court trials specified in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, which was released on July 8,
    2016 near the end of this trial. In the
Jordan
framework, this was a
    transitional case in which the Crown had to rebut the presumption of
    unreasonable delay on the basis of exceptional circumstances.

[5]

The trial judge found there were two reasons why
    this case took so long to complete. First, the appellant had come to court ill-prepared
    on March 3, 2015, when his trial was set to begin, completely unable to defend
    himself. The trial judge noted that he had no pen nor paper, that he could not
    read or write English, that he did not have the disclosure with him, and that
    he had a limited education. Furthermore, he required an interpreter. The trial
    judge found the appellants inability to represent himself was an exceptional
    circumstance that was reasonably unforeseen and reasonably unavoidable by the
    Crown. Second, the trial judge found that the case was complex because of the
    number of witnesses, the volume and nature of the disclosure, and the fact that
    the appellant was self-represented.

[6]

On appeal, the appellant contends that it should
    have been plainly obvious to the Crown and to the court much earlier that
amicus
would be required in this case. Certainly the need for
amicus
, where
    one is required, should be identified as early as possible. However, on the
    facts of this case, the trial judge did not err in finding that the need for
amicus
was not reasonably apparent before March 3, 2015. At the appellants pre-trial
    appearances, particularly those of July 23, 2014 and February 9, 2015, in
    response to questions from the presiding judge, the appellant consistently and
    repeatedly assured the court that he had read the disclosure, that he had read
    it carefully, and that he had the assistance of a computer literate person in
    reading the disclosure in electronic form. Though he required an interpreter,
    he was at all times adamant that he was able to represent himself. On March 3,
    2015, the Crown was ready to proceed, the court was available, but the
    appellant was unprepared to defend himself. His inability to do so caused the
    adjournment of the trial to October 19, 2015. On this record, we are satisfied
    that October 19, 2015 was the earliest available date for the resumption of a
    trial of this length.

[7]

The trial judge was correct in concluding that
    under the
R. v. Morin
, [1992] 1 S.C.R. 771 analysis this period of
    time would have been considered either defence caused delay or, a more
    generous interpretation, neutral in the s. 11(b) calculus.

[8]

The trial judge correctly observed that all
    involved were reasonably relying on the framework that existed for the
    determination of s. 11(b) claims prior to
Jordan
. After the case was
    necessarily adjourned,
amicus
did not raise s. 11(b), and while the
    appellant may not have understood the issue, he did not either. Rather, he
    recognized that the court was trying to help him have a fair trial. The s. 11(b)
    application was pursued following the release of
Jordan
, after all of
    the evidence had been adduced and the Crown had made its closing submissions.

[9]

The trial judge did find there was additional
    delay attributable to the Crown due to the lack of an accredited interpreter.
    This additional delay was from October 19 to November 30, 2015.

[10]

On these findings, the trial judge calculated
    that the total operative delay in the case was 18 months and 14 days. She
    concluded there was no unreasonable delay and dismissed the appellants s.
    11(b) application.

[11]

We are not persuaded there is any reversible
    error in the trial judges conclusion. The appeal against conviction is
    dismissed.

[12]

On the sentence appeal, we are not persuaded
    that the trial judge made any erroneous findings of fact. It was open to her to
    find the appellant played a central role in the fraud, and that he enlisted
    others in carrying it out. The Crown concedes that the mandatory victim fine
    surcharge order included in the sentence should be set aside.

[13]

Leave to appeal sentence is granted, the
    mandatory victim fine surcharge order is set aside, but the remainder of the
    sentence appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

P. Lauwers J.A.


