R. v. Sameluk, 2011 ONCJ 259

COURT FILE No.: Thunder Bay 050449 Citation: R. v. Sameluk , 2011 ONCJ 259 ONTARIO COURT OF JUSTICE IN THE MATTER OF an appeal under 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: REGINA Respondent — AND — JARVIS SAMELUK Appellant Before Justice A. T. McKay Motion Heard on March 11, 2011 Reasons for Judgment released on May 4, 2011 Scott B. D.

Dunsmuir ....................................................................................... for the prosecution Francis Thatcher ......................................................................... for the defendant Jarvis Sameluk MCKAY J.: Ruling on a Motion BACKGROUND [ 1 ] The appellant is a commercial fisherman operating in the Thunder Bay area. He was charged with three counts of over- fishing contrary to section 36(2) of the Ontario Fishery Regulations, made pursuant to the Fisheries Act, R.S.C. 1985. The charges related to activities on the third and fourth of December, 2004.

The appellant pleaded not guilty and the matter was set for trial November 29 and 30, 2007; and March 10, 11, and 12, 2008. At the outset of the trial on November 29, 2007, the Crown withdrew one of the charges, and the other two charges proceeded to trial. On June 24, 2008, the Provincial Offences Court released a decision which convicted the appellant on the two counts of over-fishing. A total of $4,000.00 in fines was imposed, and the appellant was prohibited from engaging in any further commercial fishing activity. [ 2 ] On July 23, 2008, a notice of appeal was filed on behalf of the appellant.

On January 28, 2009, this Court issued a notice of time and place for hearing the appeal. For a variety of reasons, which will be described in the following paragraphs, the appeal is still awaiting disposition. [ 3 ] This is a motion brought by the appellant for a stay of the proceedings on the basis that the proceedings are oppressive and vexatious and constitute a violation of the appellant’s

section 7 Charter rights. Alternatively, the motion asks that the matter be remitted to this court for a new trial. The motion also claims costs. The basis for the motion is the alleged mismanagement of the court record by the provincial offences office of the City of Thunder Bay. [ 4 ] With respect to the motion, essentially the Crown’s position is that there is a sufficient record for the appeal court to hear the appeal. While the hearing of the appeal may have been delayed somewhat, the delay is not excessive and much of the delay has been occasioned by the appellant.

Accordingly, the Crown takes the position that there is no basis for the request for a stay of proceedings. Similarly, there is no basis to order a new trial at this stage. The Crown agrees that if a new trial were to be ordered as a result of the motion, it should be heard by this court. HISTORY OF THE APPEAL [ 5 ] As indicated, the notice of hearing related to this appeal was issued by this court on January 28, 2009. Since then, there have been a number of court appearances.

1. March 26, 2009 – the matter was adjourned to April 14, 2009 to set a date; 2. April 14, 2009 - counsel for the appellant indicated that the transcripts of the trial dates November 29 and 30 th were missing. The information from the Provincial Offences court office was that the recordings were jeopardized. She indicated that she wanted to investigate and to speak to opposing counsel. The matter was remanded to May 5, 2009; 3. May 5, 2009 – there were additional discussions regarding the missing tran scripts and counsel’s need to review the clerk’s notes for the dates in question.

The matter was adjourned to June 29, 2009; 4. June 29, 2009 – adjourned to July 23, 2009; 5. July 23, 2009 – there were additional discussions regarding the sufficiency of the record and the possibility of the Applicant bringing a motion for a new trial based upon deficiencies in the record. Counsel for the appellant requested ad- ditional time to consider that; 6. August 4, 2009 – counsel for the Appellant indicated to the court that the tran- scripts of the entire Crown’s case were missing.

She indicated that she needed an adjournment to bring a motion requesting that the appeal be granted and a new trial ordered. The matter was adjourned to September 10, 2009, to set a date for hearing of the motion; 7. September 10, 2009 – the motion was withdrawn, and the matter was ad- journed to September 28, 2009 in order to set a date for the hearing of the ap- peal; 8. September 28, 2009 – the appeal was set for hearing on December 1, 2009; 9. November 30, 2009 – counsel for the Appellant brought a motion to adjourn the hearing. She indicated that documents were missing from the court file.

The Crown consented to the adjournment to allow time to investigate that issue; 10. January 11, 2010 – counsel for the Appellant appeared and indicated that she had just been notified by email message that additional trial documents were filed with the appeal court. She indicated that she needed time to investigate. She further indicated that she had received an additional transcript that showed that the Justice of the Peace who presided at trial had listened to the tapes that she had been told were jeopardized. The matter was adjourned to allow coun- sel to attempt to listen to the tapes; 11.

February 2, 2010 – counsel for the Appellant, having filed this second motion to stay proceedings, requested a date for argument of this motion. The matter was adjourned to March 29, 2010 to argue the motion; 12. March 29, 2010 – the motion was adjourned after counsel for the Appellant indicated that he needed additional time to review material in the court file. 13. June 2, 2010 – a motion brought by the Crown was argued. As part of the mo- tion for stay, counsel for Mr. Sameluk on the motion, Mr. Thatcher, intended to file an affidavit sworn by Ms. Bird, who was counsel at the trial, and on the appeal proper.

The Crown took the position that Mr. Thatcher could not ap- pear as counsel on the motion, as he had appeared as a witness at trial. In ad- dition, the Crown took the position that Ms. Bird could not appear as counsel on the appeal if she gave evidence on the motion. Mr. Thatcher took the posi- tion that counsel for the Crown, Mr. Dunsmuir, could not appear as counsel on the motion or the appeal, as another lawyer from the same office, Mr. Kappos, had filed affidavit evidence on the motion. The ruling on the motion regarding the representation issues was released June 22, 2010 and is reported at 2010 ONCJ 261 .

Also, the motion for stay was adjourned at the request of counsel for the Appellant after requesting and obtaining an Order allowing counsel to listen to the tapes of the trial proceedings November 29 and 30, 2007. The motion for stay was adjourned to September 15, 2010 for argument. 14. September 8, 2010 – Mr. Thatcher advised the court of upheaval in his office due to the surprise registration of their key office employee and subsequent time consuming reviews of their trust accounts.

The motion for a stay was ad- journed at the request of counsel for the Appellant, with the consent of the Crown, to January 18, 2011 for argument. 15. January 17, 2011 – Mr. Thatcher advised that cross-examination of one of the crown witnesses had been delayed due to injuries which he had suffered The motion for stay was adjourned at the request of counsel for the Appellant, with the consent of the Crown, to February 9, 2011 for argument. 16. February 9, 2011 – the motion for stay was adjourned at the request of coun- sel for the Appellant, with the consent of the Crown, due to a death in Mr. Thatcher’s family.

Adjourned to March 11, 2011 for argument. 17. March 11, 2011 – the motion was argued, and adjourned to May 4, 2011 for decision TRANSCRIPT ISSUE [ 6 ] On March 25, 2008, counsel for the appellant ordered a partial transcript of trial proceedings related to testimony of the appellant and Conservation Officer Tippin. Those transcripts were not ordered for the purpose of this appeal, as the decision had not been made at that point. They were ordered for the purpose of a defamation claim by counsel for the Appellant against the Ministry of Natural Resources and Conservation Officer Tippin.

Those partial transcripts were completed May 20, 2008. On June 24, 2008, the trial court released its decision. June 24, 2008, counsel for the Appellant ordered transcripts of the trial proceeding for purposes of this appeal. [ 7 ] The undisputed evidence before this court is that it is fairly common in the Thunder Bay district for transcripts to be

delayed. In January of 2008, counsel for the Appellant had just waited seven months for a transcript of a two day trial in a separate proceeding. [ 8 ] As indicated, this Court issued a notice of hearing of appeal dated January 28, 2009. On March 4, 2009, counsel for the Crown contacted counsel for the Appellant, indicated that he had carriage of the file, and requested that he be advised of the status of transcripts. In response to that, counsel for the Appellant called the Provincial Offences office, and was told that the transcripts would be ready “shortly”.

On March 18, 2009, counsel for the Appellant was notified that the transcripts were ready to be picked up. They were picked up on March 23, 2009. [ 9 ] The weekend of April 10 – 12, 2009, counsel for the appellant reviewed the transcripts and noted that they were incomplete. She noted that the transcripts from November 29 and 30, 2007, were missing, and the invoice indicated that the tapes from those dates were “jeopardized”. On April 13, 2009, counsel for the Appellant telephoned the Provincial Offences office to inquire as to what was meant by “jeopardized”.

She was advised that the Provincial Offences office would follow up and get back to her. [ 10 ] On April 22, 2009, the appeal was adjourned. On that date, counsel for the Appellant forwarded an email to the Provincial Offences office regarding the outstanding issues related to transcripts. On May 4, 2009, Ms. Dallaire, the manager of that office, responded by indicating that there was nothing audible on the tapes from those dates. She also indicated that while March 10, 2008 was a trial date, counsel had never ordered a transcript of that date.

She also indicated that the Provincial Offences office would provide a copy of the court reporter’s notes to both parties. As a result, counsel for the Appellant then requested a transcript of the March 10, 2008 proceedings. On June 22, 2009, the Provincial Offences office advised counsel for the Appellant that a Judge’s Order was needed in order to release the reporter’s notes, and that in order to obtain a transcript of the March 10, 2008 date, counsel needed to complete a transcript request form. Counsel for the Appellant completed the form and forwarded it that date.

On July 16, 2009, counsel for the Appellant was notified that the March 10 transcript was ready for pickup. The transcript of the proceedings November 29 and 30, 2007, remains unrecoverable. MANNER IN WHICH THE TRIAL PROCEEDED [ 11 ] The manner in which the trial proceeded is significant to the issues on this motion. On January 17, 2007, a judicial pre- trial was held. During that pre-trial, the parties negotiated an agreed statement of facts related to the Crown’s case. On October 16, 2007, the Defence served a Notice of Constitutional Question requesting a stay of all charges.

November 13, 2007, the Crown served and filed responding material. November 16, 2007, the Crown served and filed a factum and book of authorities on the issue of the timing of the defence’s application for stay. November 29, 2007, the trial commenced. The Crown withdrew one count, for which there was not agreed statement of facts. The Crown cited non-attendance of an American witness in explaining the withdrawal of the charge. The Crown and Defence then made submissions as to how the application for stay should proceed within the context of the trial.

The presiding Justice then briefly adjourned to consider the arguments and materials. He returned and gave an oral ruling that the trial on the merits would be conducted first, following which the defence application for stay would be heard. The matter was then adjourned to 2:00 p.m. that day to allow counsel time to deal with that ruling. The trial resumed at 2:00 p.m. on November 29, 2007. On consent, the Crown read the agreed statement of facts into the record, and then rested its case.

The Defence then asked for an adjournment until the following morning in order to consider some issues. [ 12 ] On November 30, 2007, the trial resumed. The defence began to call evidence, with counsel for the defence calling her legal partner, Mr. Thatcher, as a witness. He gave evidence that he had appeared in court as agent for the Appellant in a past matter. The Crown objected in the basis of relevance. The Court initially denied the Crown’s objection. When counsel for the Applicant then began a line of questioning of Mr.

Thatcher related to affidavit evidence of the accused, the Crown again objected on the basis of relevance, given the Court’s earlier ruling that the evidence related to the trial on the merits would be completed prior to the defence application for a stay. The Court then sustained the Crown’s objection and prevented any further testimony by Mr. Thatcher.

After the ruling, the matter was adjourned to 2:00 p.m. to give the parties time to reflect on the ruling. [ 13 ] It is noted that throughout the remainder of the trial, neither the Defence nor the Crown, nor the Court in its judgment, made any significant comment or appeared to place any reliance on the brief testimony of Mr. Thatcher. On March 10, 2008, after the conclusion of the Crown’s case, the defence was asked by the Crown whether she would seek to recall Mr. Thatcher as a witness on the application for a stay, to which she responded that she would not.

At that point, she indicated that she would be relying on the evidence of the defendant for the stay application. [ 14 ] When the trial resumed at 2:00 p.m. on November 30, 2007, defence counsel indicated on the record that she had received instructions to, in part, “withdraw” the agreed statement of facts. After discussion between counsel, the Crown then read into the record an amended statement of agreed facts. The Crown then requested and, with the consent of the Defence, was granted the right to re-open its case in order to call additional evidence.

The witness that the Crown intended to call was not available on November 30, and accordingly the matter was adjourned to March 10, 2008, at which time the Crown called its only witness. [ 15 ] In

summary, the following are the proceedings which took place on the two days for which the transcript is not available. On November 29, 2007, the Crown withdrew one count against the Applicant. In reliance of the factums filed with the court, both parties made submissions as to when the application for a stay of proceedings should be heard. The Court decided that it would be heard following the evidence on the trial on the merits. The Crown read into the record the agreed statement of facts. On November 30, 2007, the defence asked for an order excluding all witnesses, which was granted.

The Defence then called Francis Thatcher as a witness. The Court held that his evidence was irrelevant at that point and confirmed that the evidence on the stay application would be heard following the evidence related to the trial on the merits. Mr. Thatcher was never recalled as a witness nor referred to by the Defence in its final submissions. An affidavit which he had filed remained as an exhibit. [ 16 ] Also, on November 30, 2007, the agreed statement of facts was withdrawn by the Defence.

Amendments were made to the agreed statement of fact, and the Crown obtained an adjournment in order to allow it to call one witness. The Defence consented to that adjournment.

COMPLETENESS OF THE COURT FILE [17] Counsel for the Appellant takes the position that the appeal court’s file is incomplete and inadequate to hear the appeal. The position is that “numerous documents were either incomplete or missing entirely”. Counsel for the Appellant also takes the positionthat there were instances during the trial where documents were misfiled or incomplete. Deficiencies listed by counsel for the Appellantinclude an indication that only the first page of the Notice of Constitutional question served on behalf of Mr. Sameluk was in the courtfile.

Similarly, the indication is that the file did not contain the complete notice of application, factum and application records. Also saidto be missing were documents such as an affidavit of service, copies of court rules, emails from the Provincial Offences Office regardingtrial dates, the Crown’s letter indicating who had carriage of the file, emails regarding pre-trial dates, and a summons to witness. [18] The evidence of Ms. Dallaire, manager of the Provincial Offences Office in Thunder Bay, can be summarized as follows.

The usual process to transfer documents from their office to an appeal court is initiated by request by the appeal court. The requeststypically come in two stages. When the first request is received, the file contents, excluding exhibits, are forwarded along with an appealtransfer checklist form which indicates what is included in the package being transferred. Once a date is set for the hearing of appeal,the appeal court office requests the trial exhibits. POA office staff then prepare a second appeal transfer checklist form indicating whatwill be in the second transfer package.

The exhibits are then forwarded with that checklist to the appeal court. The evidence of Ms.Dallaire is that the practice was followed in this case. Ms. Dallaire’s evidence is that all documents which were formally part of the trialrecord were forwarded to the appeal court in accordance with normal procedure. When learning of Ms. Bird’s concerns regardingcompleteness of the file, Ms. Dallaire personally reviewed the concerns. She located a box of documents related to the matter. However,none of the documents in the box were considered by her to be official court records.

None had been marked as exhibits at trial and, inher view, were not technically part of the trial record. Some of the items in the box were duplicate copies of other items forwarded to theappeal court, along with documents that had not been entered as exhibits. However, Ms. Dallaire caused all of those documents to bedelivered to the appeal court on January 8, 2010. Her evidence is that at times, presiding judicial officers in that court do not alwaysreturn facta, briefs of authorities and other similar documents to the trial record box.

Documents such as summons to witnesses andaffidavits of service are often not retained once a witness has attorned to the jurisdiction of the court. At times, the law enforcementofficer who served the document retains the affidavit of service. [19] The Crown therefore takes the position that the documents which were part of the trial record were properly maintainedand forwarded to the appeal court in two stages as indicated in Ms. Delair’s evidence. The second stage of those documents wasforwarded September 3, 2009.

THE ISSUES AND THE LAW [20] There are a number of issues raised by counsel for the Appellant in the motion. The Court will deal first with the issue ofwhether the existing transcripts provide an adequate record for the appeal. [21] Section 127(1) of the Provincial Offences Act, provides for a new trial in certain instances where the court record isincomplete. “127.

(1) Appeal By Way of a New Trial – where, because of the condition of the record of the trial in the trial court or for any otherreason, the Court, upon the motion of the Appellant or Respondent, is of the opinion that the interests of justice would be better servedby hearing an determining the appeal by holding a new trial in the court, the Court may order that the appeal shall be heard by way of anew trial in the court and for this purpose this act applies with necessary modifications in the same manner as to a proceeding in thetrial court”. [22] Crown counsel at trial, Demetrius Kappos has filed an affidavit on the motion which is an uncontested overview of whatoccurred on the trial dates of November 29 and 30, 2007, for which the transcript is missing. [23] There are a number of cases which provide guidelines regarding gaps in the record.

As stated by Justice L’Heureux-Dubein R. v. Hayes (SCC), [1989] 1 S.C.R. 44 at paragraph 10, “a new trial need not be ordered for every gap in atranscript. As a general rule, there must be a serious possibility that there was an error in the missing portion of the transcript, or thatthe omission deprived the Applicant of any ground of appeal”. Similarly, in R. v. Dobis (ON CA), [2002] OJ No.646, Justice MacPherson, on behalf of the Ontario Court of Appeal, indicated that an appeal court should not, “refuse outright to hear anappeal solely because of a missing transcript”.

The court went on to indicate that the relevant question is whether, “the respondent isprejudiced on the appeal because of the missing transcript”. [24] Again, it is important to note what occurred on the two days of trial for which transcripts are unavailable. The presidingjustice gave an oral ruling on the procedural issue related to the timing of the application for stay of proceedings within the trial. TheCourt ruled that the trial on the merits would be conducted first, following which the application for stay would be heard.

The Crownalso read the statement of agreed facts into the record, and rested its case. The following day, the Defence called the evidence of Mr.Thatcher. Ultimately, the Court ruled that that evidence had no relevance in view of the earlier procedural ruling. The Defence alsowithdrew the agreed statement of facts.

After some discussion, an amended agreed statement of fact was read into the record and theCrown was granted an adjournment on consent in order to allow the Crown to call an additional witness to supplement the revisedagreed statement of fact. [25] It is also worth noting that the Defence never attempted to recall Mr. Thatcher later in the trial, nor did either the Defenceor the Court place any reliance on the evidence of Mr.

Thatcher. [26] It is apparent from the case law that the focus should be upon whether or not any missing portion of a transcript has anyreal impact on the courts’ ability to hear the appeal in a fair and effective manner, which allows the Appellant to argue all availablegrounds of appeal. In the material before this Court, the Appellant has not made any connection to a ground of appeal and linking it to

the proceedings which took place on November 29 and 30, 2007. The only evidence heard on either of those dates, in addition to thestatement of agreed fact, was the very brief evidence of Francis Thatcher. That evidence was held to be irrelevant to the trial on themerits. Later on the application on the stay of proceedings, Mr.

Thatcher was never recalled as a witness, and neither the court nor eitherof the parties made any reference to any reliance upon his evidence. [27] The only other evidence heard on those two days was the original statement of agreed fact, which was subsequentlywithdrawn, and the amended statement of agreed fact. The content of that is not in controversy. Finally, the final transcript of judgmentof the presiding justice sets out in detail the reasons for his procedural decision on the timing of hearing the stay of proceedings.

Thatwas the only decision of impact made by the presiding justice during the gap in transcripts. Accordingly, I find that the missing portionsof the transcript are not necessary for the hearing of the appeal. There is no realistic possibility that an error of any significance lieswithin the missing transcript, or that the missing transcript has deprived the Appellant of any ground of appeal.

Accordingly, theinterests of justice are not better served by holding a new trial as a result of any gaps in the transcript. [28] The Appellant has also raised the issue of the adequacy of the court file forwarded to the appeal court.

Section 115 of theProvincial Offences Act outlines the duties of the trial clerk regarding transmittal of material. It reads as follows: 115.

Transmittal of Material – where a notice of appeal has been filed, the clerk or local register of the appeal court shall notify theclerk of the trial court of the appeal and, upon receipt of the notification, the clerk of the trial court shall transmit the order appealedfrom and transmit or transfer custody of all other material in his or her possession or control relevant to the proceeding to the clerk orlocal registrar of the appeal court to be kept with the records of the appeal court. [29] On a plain reading of the section, it is apparent that only those materials in possession of the clerk of the trial court thatare deemed to be relevant need to be transferred.

The trial court forwarded all documents filed as part of the court record in a timelyfashion. Counsel for the Appellant indicates that other documents are missing from the court file. Of the list of documents which arealleged to be missing, a number appear to be of questionable relevance. In any event, all appear to be documents which counsel wouldretain copies of and could simply be re-filed with the court if required.

Apparently that option was canvassed by way of a letter betweencounsel on November 25, 2009. [30] The evidence on the motion does not demonstrate that the trial clerk failed to carry out the duties imposed by

section 115of the Provincial Offences Act. If there are documents of some relevance which are missing, the parties may simply re-file copies ofthose documents. It is not in the interest of justice that a new trial be ordered because of any deficiency related the court file. [31] The primary claim by the Appellant is for a stay of proceedings. In reliance of a claim for that relief, the Appellant hascited cases such as R. v. Chaulk [1997] OJ No. 6281, and R. v. Ovided [2008] OJ No. 2780.

A stay of proceedings is only available as aremedy in exceptional cases where it is clear that the conduct of the enforcement officers or the Crown is so flagrant and shocking as toconstitute the abuse of the court’s process. That situation arises when compelling an accused to stand trial would violate the fundamentalprinciples of justice underlying the community sense of fair play and decency or where proceedings would be oppressive and vexatious. That guidance is provided by the Supreme Court of Canada in R. v. Power, (SCC), [1994] 1 S.C.R. 601.

That decisionalso sets out the nature of the evidence required to establish an abuse of process. The decision indicates: “To conclude that the situation is tainted to such a degree that it amounts to one of the clearest of cases, as the abuse of process hasbeen characterised in the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point thatthey are contrary to the interests of justice... Where there is conspicuous evidence of improper motives or of bad faith or of

an act sowrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and onlythen, should courts intervene to prevent an abusive process which could bring the administration of justice into disrepute. Cases of thisnature will be extremely rare.” [32] The Appellant argues that the conduct of the City of Thunder Bay Provincial Offences Office is so shocking that itwarrants a stay. Similarly, counsel for the Appellant argues that the behaviour on the part of that office has occasioned significant delayin the hearing of the appeal. As pointed out by counsel for the Appellant, the Supreme Court of Canada has found that

section 7 of theCharter will provide a remedy in appropriate circumstances when delay of an appeal proceeding effects the fairness of the trial. [33] In reviewing the conduct of the Provincial Offences Office, I note the following. The initial order of transcript took aperiod of more than eight months to complete. That is an unfortunate timeframe, but is not in and of itself sufficient to approach conductwhich would justify a stay of proceeding. When portions of the March 11, 2008 transcript were found to be missing, the delay incompleting it was minimal, three days. At one point transcripts were expedited.

When the tapes from November 29 and 30 wereinaudible, they were sent to an outside agency to determine whether they could be salvaged. There is disagreement regarding the delay inreceiving the March 10, 2008 transcripts. This Court cannot ascribe that delay to improper conduct on the part of court services. Therewas discussion regarding the desire to have a transcript of those proceedings.

However, counsel for the Appellant had to be familiar withthe process of ordering transcripts, and did not actually fill out the transcript order form until approximately one and a half months afterrequesting the transcript. [34] With respect to the missing transcripts, there is no satisfactory explanation as to why the tapes malfunctioned. However,there is no evidence of improper conduct by the City of Thunder Bay with respect to the failure of the tapes to function properly.

Similarly, the evidence on this motion does not allow this court to conclude that the City of Thunder Bay was evasive or untrue ormisleading with respect to the status of transcripts. [35] With respect to the length of time which it has taken for this appeal to be disposed of, the Court notes that the initial orderof the transcript took slightly more than eight months. However, this was a trial which took place over a period of five days.

From theevidence on the motion, this was not such a lengthy period as to alarm defence counsel, who had at that time just recently waited sevenmonths for a transcript of a two day proceeding. While I recognize that counsel for the Appellant had to ensure that she understoodwhether any record of the trial proceedings was missing, the delay in arguing this motion cannot simply be attributed to the Crown. Ittook some period of time for the defence to bring the original motion for stay. That motion was subsequently withdrawn when the

Appellant decided to proceed with the appeal based upon the existing record. Subsequently, this motion was brought after the Appellant decided that it was necessary because of missing documents from the court file. However, as indicated, the relevance of some of those documents is questionable, and they all appear to be documents which simply could have been re-filed with the court file in order to move the matter along.

The actual argument of the motion for stay was adjourned on at least four occasions at the request of the Appellant, and that period of delay cannot be attributed to anyone but the Appellant. [ 36 ] Accordingly, significant portions of the delay are attributable to the Appellant, and the overall delay has not affected the fairness of the appeal. This is not a situation where the conduct of the City of Thunder Bay or the Crown is a shocking conduct which involves a marked or unacceptable departure from reasonable prosecution standards. Accordingly, the motion is dismissed, with no order as to costs.

Released: May 4, 2011 Signed: “Justice A. T. McKay”