



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Antic, 2019 ONCA 160

DATE: 20190301

DOCKET: C65094

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nickola Antic

Appellant

Paul Calarco, for the appellant

Megan Petrie, for the respondent

Heard: February 26, 2019

On appeal from the conviction
    entered on November 23, 2017 by Justice Pamela Borghesan of the Ontario Court
    of Justice and the sentence imposed on January 22, 2018.

REASONS FOR DECISION

[1]

Mr. Antic appeals his convictions, after a judge alone trial, on charges
    of robbery and breach of probation.  He also appeals the sentence imposed of 20
    months.

[2]

Only one issue is raised on the conviction appeal and that is whether
    the prosecution ought to have been stayed for unreasonable delay pursuant to s.
    11(b) of the
Canadian Charter of Rights and Freedoms
. The trial judge
    concluded that, after appropriate deductions from the total delay, the
    resulting delay did not exceed the presumptive ceiling of 18 months and thus
    did not warrant a stay being granted based on the principles set out in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.  For the following reasons,
    we agree with the decision of the trial judge.

[3]

It was admitted that the total delay in this case, before proper
    deductions, was 39 months and that that delay was presumptively unreasonable
    under s. 11(b) principles.  However, the appellant takes issue with three
    periods of delay that the trial judge deducted from the total delay in deciding
    whether the presumptive ceiling had been exceeded such that a breach of s.
    11(b) had occurred.

[4]

The first issue involves the time needed to set a date for a preliminary
    inquiry that ultimately never occurred.  This resulted from the fact that the
    accused changed counsel on the day that the preliminary inquiry was to
    commence.  The appellant, with his new counsel, eventually waived the
    preliminary inquiry in favour of proceeding with a trial in the Ontario Court
    of Justice.

[5]

The appellant accepts that the delay from the scheduled start of the
    preliminary inquiry to the time when the trial date was set is defence delay. 
    However, the trial judge also attributed the time, from when the preliminary
    inquiry date was set to the planned commencement of the preliminary inquiry, to
    the defence.  The trial judge reasoned that, while the time to set the
    preliminary inquiry date would normally be considered institutional delay, in
    this case since the preliminary inquiry was eventually waived, it was not
    properly considered institutional delay.  In other words, had the appellant
    decided on a trial in the Ontario Court of Justice at the outset, there would
    have been institutional delay arising from setting the trial date, which there
    was in this case in any event, but there would not also have been the
    institutional delay from setting a preliminary inquiry date.

[6]

We do not see any error in the trial judges analysis on this point. There
    wound up being two institutional delays arising from the setting of dates  one
    was the preliminary inquiry date and the other was the trial date.  Had the
    appellant waived the right to a preliminary inquiry at the outset, the
    institutional delay in setting a date for the preliminary inquiry would have
    been avoided.  At the very least, had the appellant decided to waive the
    preliminary hearing well in advance of its scheduled commencement, the time
    could have been used for other matters. The Crown had subpoenaed witnesses and
    was prepared to conduct the preliminary inquiry on the scheduled date.  The
    appellant appeared on that date and without warning to any of the other
    participants indicated that he wanted an adjournment to retain new counsel.
Jordan
indicates at para. 138 that defence counsel are expected to use court time
    efficiently. The fact that that delay was not avoided lies at the feet of the
    appellant. The trial judge was correct to deduct that period of time as defence
    delay.

[7]

The second issue is with respect to the delays that occurred when the
    trial was not completed in the time frame originally contemplated.  Dates for
    the continuation of the trial had to be found.  One set of dates was made
    available in July and a further set of dates was made available in December. 
    While the court was available on certain earlier dates, either Crown counsel or
    defence counsel was not.  The trial judge began by considering the delay in
    getting to the continuation of the trial as having to be attributed between the
    Crown and the defence and attributed one and one-half months to the defence.

[8]

However, later in her analysis, the trial judge deducted the entire five
    month period between July and December as an exceptional circumstance. She
    concluded that the additional time needed to complete the case was unpredicted
    by both counsel. It was the result of unforeseeable or unavoidable developments
    and thus constituted an exceptional circumstance:
Jordan
at para. 73.
    As noted in
R. v. Jurkus
2018 ONCA 489 at para. [55], where a trial
    goes longer than reasonably expected, even where the parties have in good
    faith attempted to establish realistic timelines it is likely that the delay
    was unavoidable. In our view, the trial judge correctly treated this period of
    delay as an exceptional circumstance given her findings as to how it arose.  We
    note, in passing, that this case does not engage the type of individual analysis
    arising from the unavailability of defence counsel when there are joint
    accused, that this court had to consider in
R. v. Gopie
,  2017 ONCA
    728, 140 O.R. (3d) 171. The appellants reliance on that case is misplaced.

[9]

Nevertheless, and as the respondent acknowledges, in the course of the
    trial judge moving from her initial analysis to the final analysis on this
    issue the trial judge unfortunately double-counted the one and a half months that
    trial judge had originally attributed to the defence because of the
    unavailability of defence counsel.

[10]

However,
    correcting for this double-counting does not alter the end result.  The trial
    judge found the total period of delay, after making the deductions that she
    did, to be 13 ½ months.  Adding back to the delay analysis, the double-counting
    of the one and one-half months, leaves the total delay at 15 months.  That
    delay is still below the presumptive ceiling of 18 months from
Jordan
.
    On that point, it is not necessary to deal with the respondents argument that
    we should revisit other periods of time that the respondent submits the trial
    judge also should have deducted from the total delay.

[11]

The
    third and final issue involves a further period of delay that resulted from the
    fact that the original trial judge, Zabel J., was suspended from presiding over
    any matters as a result of a complaint to the Ontario Judicial Council
    completely unrelated to this case.  Consequently, the trial could not continue
    in December as planned. The trial judge treated the delay that resulted from
    that event also as an exceptional circumstance.  We agree with her treatment of
    that issue.  While the appellant contends that he should not be tarred with the
    delay that resulted from that unusual event, the flip side is that neither
    should the Crown.  That is the whole point behind treating the time as an
    exceptional circumstance.  As
Jordan
pointed out, there are some
    events that no one can anticipate and those events should simply be removed
    from the delay analysis. The issue arising from the conduct of the original
    trial judge falls squarely within that category. That conduct was in no way
    connected to this trial. The Crown took prompt proactive measures to deal with
    the delay caused by this event. Once it became clear that the trial judge could
    not continue with the trial, new dates were obtained only two months away.

[12]

In
    the end result, the total delay that had to be considered, even after adjusting
    for the one instance of double-counting, is below the presumptive ceiling.  The
    trial judge was correct in not granting a stay.  We would note that the trial
    judge also considered this case under the transitional category and found no
    reason to reach a different conclusion under that analysis.  We agree with her
    conclusion in that respect as well.

[13]

Lastly,
    the appellant seeks leave to appeal his sentence of 20 months. The appellant
    committed two separate violent robberies where pepper spray was directed at the
    faces of employees in small commercial establishments who were working alone,
    at night.  The robberies were planned.  The appellant took the first victims
    cellphone from her and ripped out the landline from the wall.  The appellant
    had a record, and was on probation at the time of the offences.

[14]

The
    appellant has not shown any error of law or error in principle in the
    sentencing judges decision:
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089.  She considered the rehabilitative prospects for the appellant but
    she also considered that actual harm had been inflicted on the store clerks
    involved, and the fact that the appellant had a criminal record. She arrived at
    a sentence that trial counsel had acknowledged was within the range. In short,
    and contrary to the appellants submissions, the trial judge did consider the
    appellant and his circumstances, and not solely the offences. There is no basis
    for this court to interfere with the sentence that she imposed.

[15]

In
    the end result, the appeal is dismissed.  Leave to appeal sentence is granted but the sentence appeal is also dismissed. In light of the Supreme Court of Canada's decision in
R. v. Boudreault
, 2018 SCC 58, the victim surcharge is set aside.

G.
    Pardu J.A.
I.V.B. Nordheimer J.A.
A. Harvison Young J.A.


