R. v. Vuozzo, 2012 ABQB 134

Court of Queen ’ s Bench of Alberta Citation: R. v. Vuozzo, 2012 ABQB 134 Date: 20120229 Docket: 091549832S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Alexander Benjamin Vuozzo Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.B. Sulatycky _______________________________________________________ Appeal from the Conviction by The Honourable Judge B.D. Rosborough Dated the 04 th day of March, 2011 Filed on the 23 rd day of June, 2011 ( 2011 ABPC 133 , Docket: 091549832P1)

[1] The question on this appeal is whether a court has jurisdiction to issue written reasons after sentencing of an offender andissuance of a warrant of committal are completed. [2] The learned trial judge after announcing that written reasons would follow, in

summary terms dismissed a Charterapplication by the Appellant and convicted him of several offences. Sentencing proceeded directly. After the Crown’s submissions onsentence the trial judge offered defence counsel an adjournment to consider authorities on which the Crown had relied. The offer wasdeclined. [3] At the end of his submissions on sentencing, defence counsel on inquiry was told by the learned trial judge that writtenreasons would be delivered in three weeks. Only then did defence counsel raise concerns about the absence of reasons and his client’ssense of being “railroaded” by a quick decision.

At no time did defence counsel seek an adjournment of sentencing to await the writtenreasons. [4] The grounds of this appeal are “insufficiency of reasons” and apprehension of bias on the part of the trial judge.

At thehearing the Appellant abandoned the ground alleging bias on the part of the learned trial judge. [5] The Appellant contends that the trial judge was functus officio when he filed his written reasons therefore those reasons arenot available to an appellate court and in their absence there are insufficient reasons on record to permit meaningful appellate review ofthe decisions to dismiss the Charter application and to convict the Appellant.

Such deficiency of reasons is an error of law: R. v.Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. [6] Section 570(5) of the Criminal Code of Canada requires that after convicting a person the judge issue or cause to be issued awarrant of committal in Form 21. The warrant of committal sets out the sentence imposed on the convicted person and authorizes arrestand detention. Thereafter, the Appellant contends, the powers of the convicting court are exhausted. [7] In this case the warrant of committal was issued on March 4, 2011 the same day on which the appellant was tried, convictedand sentenced.

Notice of Appeal was filed April 4, 2011 and written reasons were delivered by the learned trial judge on April 13, 2011. [8] The Appellant cited R. v. Pinchak, 2010 ABQB 747, 504 A.R. 373, R. v. Brady 1998 ABCA 7, 209 A.R. 321, R. v.Henderson (2004) (ON CA), 191 O.A.C. 201, 189 C.C.C. (3d) 447 (Ont. C.A.), R. v. Teskey, 2007 SCC 25, 2 S.C.R.267, and R. v. McCormack (BC CA), [1996] 84 B.C.A.C. 299, 137 W.A.C. 299 in support of his argument that thelearned trial judge was functus officio when he rendered written reasons.

With the exception of Teskey those cases held that untilsentencing is completed, or a warrant of committal is issued, a judge may change a decision or correct an error. None of them consideredwhether there are circumstances in which written reasons for a decision may be issued after sentencing is completed. [9] In Teskey sentencing had not taken place but written reasons for conviction were not issued until a delay of many months andlong after a notice of appeal was filed. The Supreme Court of Canada considered that the long delay in itself did not invalidate the writtenreasons.

The issue in this appeal was not before the Supreme Court in Teskey, but the case is important to this appeal because it stronglyaffirmed the presumption that trial judges act with integrity and impartiality and that their stated reasons, written or oral, reflect thereasoning which led to conviction. [10] Although the ground of appeal here is confined to the narrow issue of the timing of the written reasons relative to the warrantof committal the Appellant also raised arguments about comments of the learned trial judge and about policy considerations surroundingthe timing of written reasons. [11] The comments of the learned trial judge are not relevant to the question in this appeal.

Notwithstanding that I need not dealwith irrelevant issues I profoundly disagree with the Appellant’s characterization of those comments and the presumption of integrityinsulates the written reasons from the unjustified attack of the Appellant.

[ 12 ] The policy issues raised by the Appellant are also not relevant. [ 13 ] The Respondent’s position is that the learned trial judge retained jurisdiction for the purpose of issuing written reasons. Amongst other authorities the Respondent cited R. v. Quinn , 2004 ABQB 830 , 372 A.R. 223. [ 14 ] I agree with the reasoning of Slatter J, (as he then was) in R. v.

Quinn and with his conclusion at para. 16 that ”the doctrine of functus officio does not apply to the issuance of reasons by a court after judgment .” In that case, like here, written reasons were delivered after sentencing was complete and an appeal launched. The only difference is that the effect of the issuance of a warrant of committal was not argued, even though it is almost certain that a warrant of committal had issued there.

In my view, in determining whether previously announced written reasons survive a functus officio challenge, there is no substantive distinction between completion of sentencing and issuing a warrant of committal. [ 15 ] The appeal is dismissed. Heard on the 21 st day of October, 2011. Dated at the City of Calgary, Alberta this 29 th day of February, 2012. A.B. Sulatycky J.C.Q.B.A. Appearances: David G. Chow Roulston Chow for the Appellant Tania Sarkar Alberta Justice for the Respondent