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The Ontario Court of Appeal dismissed Mr. Fisher’s appeal, rejecting claims of unreasonable delay under s. 11(b) and challenging recognition evidence admitted at trial.
Appeal dismissed in a s. 11(b) challenge. The Court of Appeal held that 32 days were properly attributed to the defence and a 161-day adjournment was an exceptional circumstance.
The Court has no jurisdiction to entertain an interlocutory criminal appeal from a superior court judge's refusal to permit re-election of mode of trial because the Criminal Code does not authorize such an appeal; therefore the application to strike the notice of appeal is allowed and the notice of appeal is struck, with any challenge to the trial judge's decision to be pursued on appeal after conviction (s.675) or in context of a Crown appeal of an acquittal.
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Appeal dismissed: the convictions stand because the elevator and apartment incidents were distinct with sufficient evidence (including video) supporting the elevator conviction; the s.11(b) delay claim fails because much delay was caused by the accused and no timely Charter objection was made; the 12‑month sentence is not manifestly unfit and cannot be reduced merely to avoid collateral immigration consequences.
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Net delay exceeded the Jordan presumptive ceiling but the trial judge's alternative finding that the delay was justifiable under the transitional exceptional circumstance was correct; although the trial judge erred in treating the delay as justified by particular complexity, deference to factual findings and the contextual assessment of pre-Jordan reliance, limited Crown institutional delay, defence complacency in pursuing disclosure and moving the matter along, minimal prejudice and the gravity of the offences support dismissal of the s.11(b) stay and affirming the convictions.
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Appellate court concluded the trial judge's credibility assessments and inferences about the appellant's knowledge were supported by the record and any alleged misapprehensions were not material; the transitional exception under Morin justified the delay so s.11(b) was not breached; sentencing contained an error by including $45,000 for Jeff and Nicole Fallon (non-complainants) so restitution and fine orders were reduced accordingly.
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The applicant satisfied s.679(3)(a) and (b), and on the balance of enforceability and reviewability and given his lack of criminal record, perfect bail compliance, strict house arrest terms and substantial sureties, his detention was not necessary in the public interest under s.679(3)(c); accordingly bail pending appeal was granted in accordance with the draft Release Order.
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The Court of Appeal held that the appeal court sitting under s.121 POA had jurisdiction to hear Charter issues but the appeal judge did not err in exercising his discretion to summarily dismiss Cobra's s.11(b) application brought for the first time on appeal because the appellant had multiple opportunities to raise delay earlier, failed to show exceptional circumstances or absence of prejudice, and discretionary rulings of this kind attract high appellate deference.
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The court found the arrests lawful and the evidence sufficient on possession and production, but held that nearly five years of delay violated s. 11(b) and stayed the charges.
Delay was not disproportionate to the conduct of the defence, inherent case complexity and a neutral mistrial period and therefore did not breach s.11(b); the seized documents were properly seizable under Criminal Code s.489(1)(c) (and within warrant description when applicable) so there was no s.8 breach warranting exclusion under s.24(2); the convictions and sentence fall within the appropriate range and are upheld.
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