



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kemp, 2017 ONCA 703

DATE: 20170912

DOCKET: C63544

MacPherson, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elvin Kemp

Appellant

Elvin Kemp, in person

Amy Ohler, duty counsel

Peter M. Campbell, for the respondent

Heard: September 6, 2017

On appeal from the conviction entered on June 15, 2016 by
    Justice Terrence L.J. Patterson of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted under s. 5(2) of the
Controlled Drugs
    and Substances Act
of possession of crack cocaine and marijuana for the
    purpose of trafficking. Prior to trial, he brought an application for a stay of
    proceedings for infringement of his right to a timely trial under s. 11(b) of
    the
Charter of Rights and Freedoms
. That application was heard on
    April 25, 2015 and dismissed on September 25, 2015. The matter proceeded to
    trial on June 15, 2016. Prior to sentencing, however, the appellant brought a
    second s. 11(b) application, following release of the Supreme Courts judgment
    in
R. v. Jordan
. The second application was also unsuccessful, and the
    appellant was subsequently sentenced.

[2]

The appellant appeals against conviction on the basis of errors in both
    s. 11(b) applications.

[3]

Despite the able submissions of duty counsel, Ms. Ohler, we are unable
    to conclude that the application judge made a reviewable error in dismissing
    either application.

[4]

In the first application, the application judge was to apply the law as
    developed following
Morin
. Although the application judge erred by terminating
    the calculation of delay as of the date the trial began, rather than the date
    it ended, it is not an error that affects the result. While the delay was at
    the high end of the range set out in
Morin
, the application judge went
    on to consider all of the other relevant factors including prejudice to the
    accused, and we see no basis to interfere with his weighing of these factors.
    Although, as noted by duty counsel, the application judge did not specifically
    refer to inferred prejudice to the accused resulting from the delay, we are
    satisfied, reading the reasons as a whole, that he took this into account in
    reaching his conclusion.

[5]

The second application was brought immediately following the release of
Jordan
,
    at a point when this matter was very nearly concluded: the appellant had been
    convicted but not yet sentenced. Assuming that the net delay exceeded the
    presumptive ceiling of 30 months and that this delay could not be justified by
    exceptional circumstances, the outcome of the application turned on the
    transitional exceptional circumstances provision of
Jordan
. In
    transitional cases such as the present case, the parties are presumed to have
    relied on the law that applied prior to
Jordan
. That means that if the
    delay as assessed in accordance with the
Morin
regime was reasonable,
    it will generally be found to comply with
Jordan
. Only rarely will a transitional
    case that complied with
Morin
nevertheless be found unreasonable under
Jordan
.

[6]

Given our conclusion on the first application that the application judge
    correctly found the delay to be reasonable under
Morin
, we agree with
    the application judges dismissal of the second application.

[7]

The appeal is dismissed.

J.C. MacPherson J.A.

Paul Rouleau J.A.

B.W. Miller J.A.


