



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), (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    the complainant or a witness shall not be published in any document or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, 172, 172.1, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)   an offence under section
    144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it
    read immediately before January 4, 1983, or

(iii)  an offence under
    subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual
    intercourse with a female between 14 and 16) or section 151 (seduction of a
    female between 16 and 18), 153 (sexual intercourse with step-daughter), 155
    (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 1, 1988; or

(b)        two or
    more offences being dealt with in the same proceeding, at least one of which is
    an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the
    right to make an application for the order; and

(b)        on application made by the complainant,
    the prosecutor or any such witness, 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).

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. S.M., 2013 ONCA 333

DATE: 20130524

DOCKET: C56273

Laskin, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S. M.

Applicant/Appellant

Alan D. Gold, for the applicant/appellant

Randy Schwartz, for the respondent

Heard: May 3, 2013

On appeal from the decision of Justice Faye McWatt of the
    Superior Court of Justice, sitting as a summary conviction appeal court, on November
    14, 2012, dismissing an appeal from the conviction entered on June 27, 2011,
    and allowing in part an appeal from the sentence imposed on February 15, 2012,
    by Justice Lucia Favret of the Ontario Court of Justice, sitting without a
    jury.

Epstein J.A.:

Introduction

[1]

On September 2, 2009, a physical encounter took place between the
    applicant, who is a police officer, and the victim, a university student.
    Difficulties arose after the police stopped the victim while he was driving his
    car at a high rate of speed. The applicant was charged with assault and sexual
    assault, and after a judge-alone trial, the trial judge was persuaded that the
    applicant did assault the victim and that the assaultive behaviour included
    grabbing the victims genitals. The applicant was convicted on both charges.

[2]

The trial commenced on January 17, 2011, and when argument concluded on
    March 7, 2011, the trial judge put the matter over to May 31, 2011, for the
    delivery of a verdict. Prior to May 31, however, the trial judge indicated that
    she had not yet completed her reasons, and she postponed the verdict to June 27. 
    On that date, the trial judge delivered a guilty verdict with reasons to follow.
    The parties agreed upon the date of November 21, 2011, for sentencing.

[3]

After various delays and postponements, the reasons were delivered at
    the November 21, 2011, court attendance. As a result of the delay in the
    reasons, the sentencing hearing was adjourned to February 2, 2012. In the
    interim, defence counsel (not Mr. Gold) brought an application for a stay under
    s. 11(b) of the
Charter
. The hearing of the application and the sentencing
    hearing both took place on February 2 and 7. On February 15, the trial judge
    dismissed the s. 11(b) application and sentenced the applicant to 30 days in
    jail.

[4]

The applicant appealed his convictions and sentence to the summary
    conviction appeal court. The conviction appeal was dismissed. The sentence
    appeal was allowed in part and the sentence was varied by allowing the
    applicant to serve the 30 days intermittently.

[5]

The application for leave to appeal is with respect to conviction and
    sentence. However, in oral argument, counsel for the applicant conceded that he
    could not raise an error of law with respect to sentence, and therefore
    effectively abandoned that ground of appeal. The remaining application with
    respect to the conviction appeal is narrowly cast: the applicant reinvigorates
    his argument under s. 11(b).

Analysis

[6]

Appeals to this court in summary conviction proceedings are not as of
    right or unrestricted in the nature of grounds that may be advanced. Section
    839(1) of the
Criminal Code
controls and requires that the ground of
    appeal must involve a question of law alone.

[7]

Here, the proposed ground of appeal relates to the trial judges characterization
    of various periods of time relevant to the s. 11(b) claim, and therefore

raises
    a question of law: see
R. v. Conway
, [1989] 1 S.C.R. 1659, at para.
    41;
R. v. Schertzer
, 2009 ONCA 742, 255 O.A.C. 45, at para. 71.

[8]

Even where the proposed appeal raises a question of law, the decision to
    grant leave is discretionary. The discretion must be exercised in the interests
    of justice. Two factors dominate the proper exercise of that discretion. The
    first is the significance, beyond the specific case, of the proposed question
    of law to the administration of justice in the province. The second is the
    strength of the proposed appeal: see
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641
,
    at para. 30.  Leave to appeal is granted sparingly: see
R.R.
, at para.
    37.

[9]

The applicants arguments about the characterization of the delays he
    experienced in the completion of this matter do not have significance to the
    administration of justice beyond the circumstances of this case. The principles
    to be applied in a determination of whether the criminal proceedings were
    concluded within a reasonable time are well-established: see
R. v. Nguyen
,
    2013 ONCA 169, at paras. 47-52. Application of these principles to the factual
    matrix of any case is of significance to the individual person or persons
    charged, but not to the administration of criminal justice as a whole. No new
    principle is advanced here. Fairly, the applicant does not press this factor.

[10]

This
    takes me to the second factor established in
R.R
.
Where the
    merits of the appeal appear very strong, leave to appeal may be granted despite
    the lack of any general significance, especially if the conviction at issue is
    serious and the applicant is facing a significant deprivation of his or her
    liberty.

[11]

The
    applicant submits that the appeal judge erred by failing to engage in any
    meaningful analysis of the 2 years, 1 month and 28 days it took to conclude
    this matter. As a result, the appeal judges holding that the trial judge made
    no reviewable error must be scrutinized by this court. The applicant contends that
    the trial judge erred in failing to characterize certain periods as
    institutional delay  particularly the periods associated with the trial
    judges delay in providing reasons for conviction.

[12]

The
    essence of the applicants argument is that, properly calculated, the total
    institutional delay is close to thirteen months as opposed to the ten months assessed
    by the trial judge.

[13]

As
    a relatively minor part of his argument, the applicant challenges the trial
    judges characterization of some pre-trial delays, such as the time between
    setting the judicial pre-trial and the actual date of the judicial pre-trial,
    and part of the time it took for the trial to start.

[14]

I
    see no reason to interfere with the appeal courts conclusion that the trial
    judge made no error in her characterization of the pre-trial delays. The Crown
    and defence jointly requested an adjournment of the judicial pre-trial. As for
    trial preparation, the preparation time assigned by the trial judge was on the
    low end of the relevant range: see e.g.
R. v. Schertzer
, at para. 94;
R.
    v. Khan
, 2011 ONCA 173, 277 O.A.C. 165, at paras. 32-33. I also observe
    that at no time did the defence indicate a preparedness to proceed earlier: see
R. v. Schertzer
, at para. 94;
R. v.
Lahiry
, 2011 ONSC
    6780, 109 O.R. (3d) 187, at paras. 25-35.

[15]

This
    takes me to the applicants main argument  the delay in the delivery of the
    reasons and the consequences of that delay. Counsel for the applicant candidly admits
    that the delay directly attributable to the timing of the release of the
    reasons cannot be taken to have started until September. This is because had
    the reasons been given on June 27, 2011, taking into consideration the time
    required to arrange for the evidence needed for the sentencing hearing, September
    was the earliest the sentencing hearing could have taken place.

[16]

It
    follows that the period to be considered with respect to the time lag in the
    delivery of the reasons is the eleven weeks between September and November 21,
    2011. These eleven weeks, added to the ten months of institutional delay assessed
    by the trial judge, amounts to about 13 months of institutional delay.

[17]

The
    applicant submits that delay of this length is on the cusp of unconstitutional
    delay according to
R. v. Morin
, [1992] 1 S.C.R. 771. The applicant
    further argues that this troubling amount of delay, together with two other
    factors, call for a stay. First, it must be borne in mind that the trial judge
    was the cause of the delay under scrutiny and therefore was required to assess the
    effects of her own conduct, and second, the delay caused actual prejudice to
    the applicant.

[18]

For
    the following reasons, I disagree.

[19]

In
    my view, none of the time between June 27 (the verdict) and November 21 (the
    reasons) should be characterized as institutional delay. I agree that the delay
    in the delivery of the reasons was indeed long. It must have seemed
    particularly so to those involved in the prosecution in the light of the fact
    that in that period of time the trial judge regularly promised to deliver the
    reasons and then later found herself unable to honour the promise.

[20]

However,
    the real concern is not the delay itself but whether it affected the pace of
    the case. I do not see how the first half of the delay under consideration affected
    the prosecutions trajectory. On June 27, when the verdict was rendered, the Crown
    and defence consented to the November 21 date for sentencing submissions.
    Significantly, the defence neither requested an earlier date nor indicated he
    would have been available before November 21. Moreover, the pre-sentence report
    and many of the letters the defence obtained to support his sentencing
    submissions were not available until the end of October or into November. I therefore
    conclude that the trial judge did not err in failing to attribute any of this
    time to institutional delay.

[21]

This
    takes me to the period between November 21, 2011, and February 2, 2012. About
    two months of this period are not in dispute  it was necessary because of the
    trial judges failure to provide her reasons earlier. The trial judge recognized
    this and unequivocally took responsibility, characterizing 54 days as
    institutional delay.

[22]

The
    parties take issue over 19 days attributed to the defence because of defence counsels
    unavailability between November 21, 2011, and February 2, 2011. I see no error
    in the trial judges refusal to attribute 19 days to institutional delay  the
    Crown was ready as early as November 30, so it is reasonable to attribute some
    of the delay to the defence. However, even if I were to cede to the applicants
    position, the total institutional delay would be approximately ten and a half months
     in the circumstances of this case, hardly at the tipping-point of
    unconstitutional delay.

[23]

As
    noted, the applicant submits that this court should take into consideration
    that the trial judge was assessing her own conduct. I do not see the relevance
    of this point. There are many occasions on which judges must assess their own
    conduct, such as the appropriateness of particular jury instructions and rulings
    on mistrial applications for reasonable apprehension of bias. In such
    circumstances, it is assumed that judges execute their functions in a judicious
    and impartial manner. I see no reason to conclude that the trial judge did otherwise
    in this case. The trial judge thoughtfully assessed her own conduct and
    attributed delay to her actions where appropriate.

[24]

Turning
    to the applicants submission regarding prejudice, I note that the trial judge
    did find some evidence of actual prejudice. However, I see no reason to
    interfere with the trial judges findings, grounded in the evidence before her,
    that the applicants stress did not prevent him from working and did not cause
    him to be alienated. While the applicant was no doubt adversely affected by the
    delay in awaiting his sentence, on this record I see no difference between his
    stress and anxiety, and that of any other offender. There is nothing here that
    transforms what is otherwise a reasonable delay into a constitutional
    violation.

[25]

In
    my view, therefore, the merits of this appeal are far from strong.

[26]

In
    terms of the other relevant consideration under the second
R.R
.
factor, I would add that while the convictions may attract additional consequences
    given the applicants status as a police officer, it cannot be said that as a
    result of these convictions he faces any significant deprivation of his
    liberty. He received a brief intermittent sentence, much of which has been
    served.

Conclusion

[27]

I
    do not regard this as an appropriate case for granting the applicant leave to
    appeal and would therefore dismiss the application.

Released:

MAY 24 2013                                   Gloria
    Epstein J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree H.S. LaForme J.A.


