



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lapps, 2019 ONCA 1001

DATE: 20191218

DOCKET: C66188

MacPherson, Sharpe and Zarnett JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Dale Lapps

Appellant

Dale Lapps, acting in person

Matthew Gourlay, appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard: December 11, 2019

On appeal from the conviction entered by Justice Faye E.
    McWatt of the Superior Court of Justice, sitting with a jury, on October 11,
    2018, and from the sentence imposed on January 25, 2019, with reasons reported
    at 2019 ONSC 132.

REASONS FOR DECISION

[1]

At the conclusion of the hearing of the appeal
    we dismissed it with reasons to follow. These are those reasons.

[2]

The appellant was convicted of importing and
    possession for the purpose of trafficking cocaine, after his third trial on
    those charges.

[3]

At his first trial, the appellant had introduced
    his trucking logs into evidence. At his second, his counsel had also introduced
    the trucking logs into evidence. Before the third trial, the Crown proposed an
    Agreed Statement of Facts with the intention that it be filed at trial. A
    provision of the proposed Agreed Statement of Facts was that the appellants
    trucking logs would be admitted as evidence. Counsel for the appellant
    ultimately sent an email before trial agreeing that the trucking logs would be
    admitted as evidence as part of the Crowns case. Two weeks later appellants
    counsel advised he wished to resile from the agreement about the trucking logs,
    and he brought an application to the trial judge for permission to do so. The
    trial judge held that permission was required and refused to give it. Appellants
    counsel signed the Agreed Statement of Facts which contained the agreement
    about the trucking logs, and it was filed at trial under s. 655 of the
Criminal

Code
, R.S.C. 1985, c. C-46
.

[4]

The appellant argues that the trial judge erred
    in treating the agreement made before trial about the admission of the trucking
    logs as being governed by s. 655 of the
Code
which, he submits, only
    applies to agreements or admissions made at trial, not before. We do not agree
    that that distinction is operative in the circumstances of this case.

[5]

The agreement proposed by the Crown was one to
    be used at trial under s. 655. Once counsel agreed to it, the trial judge had a
    discretion to refuse permission to resile from an agreement that had been
    expressly made in anticipation of such use. She was entitled to reject the
    suggestion that the agreement had been made in haste, to take into account that
    there was no suggestion of a mistake or misunderstanding which led to the
    agreement, and to note that the appellant did not dispute that the logs were
    made by him and were accurate. We reject this ground of appeal.

[6]

We also reject the argument that the trial judge
    erred in admitting the out-of-court statement of Mr. Jackson. In our view the
    trial judge correctly applied the principles in
R. v. Bradshaw
, 2017
    SCC 35, [2017] 1 S.C.R. 865. She considered the substantive reliability of the
    statement in light of evidence which corroborated it, including police
    surveillance of which Mr. Jackson was unaware when he made the statement. We
    see no error in the trial judges conclusion that it was unlikely that material
    aspects of the statement would change under cross-examination.

[7]

Finally, we see no error in the trial judges
    refusal to provide a 
Bosley
credit in determining the sentence for
    the appellant (see
R. v. Bosley
(1992), 59 O.A.C. 161 (C.A.)). The
    trial judge found she could not rely on the appellants affidavit supporting
    the credit because she did not find him a credible witness, and that he did not
    demonstrate prejudice arising from the delay in the matter reaching final
    conclusion, including because he had had the opportunity to work through a
    significant period of that delay.

[8]

Accordingly, the appeal was dismissed.

J.C. MacPherson J.A.

Robert J. Sharpe J.A.

B. Zarnett J.A.


