



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Falkowski, 2017 ONCA 253

DATE: 20170327

DOCKET: C61353

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Scott Falkowski

Appellant

Scott Falkowski, acting in person

Christine Mainville and Dan Stein, appearing as duty
    counsel

David Friesen, for the respondent

Heard: March 6, 2017

On appeal from the conviction entered by Justice William
    B. Horkins of the Ontario Court of Justice on August 20, 2015 and from the
    sentence imposed on November 4, 2015.

ENDORSEMENT

[1]

At the conclusion of the hearing, the court dismissed the appeal with
    reasons to follow.  These are those reasons.

[2]

The appellant appeals from his conviction for breaking and entering into
    a dwelling house pursuant to s. 348(1)(b) of the
Criminal Code
. He has
    abandoned his request for leave to appeal his six month sentence.

[3]

A theft occurred in a condominium unit in the building in which the
    appellant worked as the concierge. The condominium owners were showing their
    unit to prospective purchasers and over $4,000 was stolen from the premises. Some
    of the cash that was stolen had come from a tin container belonging to one of the
    owners. The police lifted fingerprints from that container. If proven to belong
    to the appellant, the fingerprint evidence created compelling circumstantial
    evidence linking the appellant to the crime.


[4]

At trial, Officer Linley was qualified as an expert in fingerprint
    analysis. In her opinion, the print on the tin matched the properly proven
    known print taken as part of the investigative process that belonged to the
    appellant. Before the trial judge, the appellant argued that the known print
    was not taken as part of the intake process but was instead taken from police
    archives.

[5]

The trial judge was well aware of the confusion relating to the
    prints. In careful reasons, he explained the basis for the appellants argument
    and why, based on the facts, he rejected it and instead accepted Officer
    Linleys evidence. Those findings were available to the trial judge on the
    record before him and w
e see no error.  Moreover, the
    conviction was one that a properly instructed jury or judge acting judicially
    could reasonably have rendered.

[6]

We also see no error in the dismissal
    of the appellants s. 11(b) application. Under the framework in
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, the
    appellant argues that while the 16.5 month delay fell within the
Jordan
parameters, the delay was unreasonable
.

[7]

We disagree. Under the
Jordan
framework, where the delay falls below the presumptive
    ceiling of 18 months, the onus is on the defence to show the delay was
    unreasonable. The defence must show: (i) it took meaningful steps that
    demonstrate a sustained effort to expedite the proceedings (defence initiative);
    and (ii) that the case took markedly longer than it reasonably should have:
Jordan
, at para. 82 (reasonable time requirement). The latter
    derives from a variety of factors such as the complexity of the case, local
    considerations, and whether the Crown took reasonable steps to expedite the
    proceedings:
Jordan
, at para. 87. In
    transitional cases, the two aforementioned criteria are to be applied
    contextually, with consideration given to the parties reliance on the previous
    state of the law:
Jordan
, at para.
    99.

[8]

The appellant has failed to meet the
    onus of establishing the second criterion and therefore has failed to show that
    the delay was unreasonable in the circumstances. Although the trial judge
    attributed two months of delay as resulting from delay in Crown disclosure, he
    also noted that this was not a garden-variety uncomplicated criminal case.  Furthermore,
    although the trial was not completed within the estimated trial time of two
    days, the trial judge found that no fault was to be attributed to anyone in
    this regard. The 16.5 month delay has not been shown to be unreasonable. As the
    Supreme Court noted in
Jordan
, stays
    beneath the presumptive ceiling are expected to be rare, and limited to clear
    cases: at para. 48

[9]

The appellant also takes issue with the trial judges dismissal of the
    appellants s. 7 Charter application. He argued that a breach arose due to the
    failure of the police to preserve evidence of the video recording from the
    condominiums front lobby closed circuit TV monitor. He argued that the video
    might have disclosed an unauthorized person taking a key to the owners unit.

[10]

The trial judge noted that the Crowns
    duty to disclose gives rise to a duty to preserve relevant evidence. However,
    he found that the evidence was somewhat speculative and not clearly relevant.

[11]

The case pointed to the theft having
    been committed by an insider and the video would not show the hallways or the
    entrance to the owners unit. Inquiries with respect to the video were made by
    the police. The trial judge concluded it was a reasonable investigative decision
    not to preserve the video. The trial judge could find no unacceptable
    negligence or bad faith. As such, there was no s. 7 breach.

[12]

Moreover, the trial judge noted that
    although he was not granting a stay, when applying the reasonable doubt
    standard, he would consider the impact of the missing evidence on the reliability
    of the evidence as a whole.

[13]

We agree with the trial judges
    analysis and conclusion and would not give effect to this ground of appeal.

[14]

Lastly, we see no merit in the
    submission that the trial judges reasons suffered from any insufficiency. The
    trial judge explained why he was deciding as he did and, read as a whole and in
    the context of the evidence, his reasons allowed for effective appellate review:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-16
.

[15]

The appeal is dismissed.

Paul Rouleau
    J.A.

S.E.
    Pepall J.A.

L.B.
    Roberts J.A.


