Court of Appeal for Ontario

Date: October 5, 2017

Docket: C61325

Judges: Gillese, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

John Paul Baron Appellant

Counsel

John Paul Baron, acting in person

Daniel Stein, appearing as duty counsel

Craig Harper, for the respondent

Heard

May 3, 2017

On Appeal From

The ruling of Justice Bruce G. Thomas of the Superior Court of Justice, dated June 4, 2014, with reasons reported at 2014 ONSC 3300, and from the conviction entered on December 1, 2014 by Justice Johanne N. Morissette of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on November 13, 2015.

Trotter J.A.:

A. Overview

1John Paul Baron was convicted of 28 counts of fraud over $5,000, contrary to s. 380(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. He was sentenced to six years' imprisonment. Mr. Baron appeals his convictions and sentence.

2The appellant and his two co-accused – Terrance McGill ("McGill") and Leeanne Houle ("Houle") – were charged in a Ponzi scheme. "Investors" in the scheme advanced $3,418,550 (Cdn.) and $250,000 (U.S). When the scheme inevitably collapsed, losses totalled over $2,000,000.

3After the three accused were charged, 59 ½ months passed before the trial concluded. In advance of the trial, the accused unsuccessfully applied to have the proceedings stayed, based on infringements of s. 11(b) of the Charter. The appellant challenges this ruling on appeal. He also submits that the trial judge erred in the manner in which she instructed the jury.

4For the reasons that follow, I would dismiss the appeal.

B. Trial Within a Reasonable Time

(1) Introduction

5The appellant was convicted almost three years ago. He relies on the new framework for s. 11(b), established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and affirmed in R. v. Cody, 2017 SCC 31, 349 C.C.C. (3d) 488.

6This fraud prosecution was complex, especially in the early stages, when thousands of pages of disclosure started to flow, and as counsel started to come to grips with the case. Proceedings in the Ontario Court of Justice ("OCJ") were plagued with delays attributable to the defence. One lawyer (not Mr. Stein) initially represented all three accused. Perhaps inevitably, counsel was eventually removed from the case. This was the first in a concatenation of delays for which the Crown could not be held responsible. The case laboured in the OCJ while the accused sought to retain new counsel. Dates for the lengthy preliminary inquiry had to be set three times, due to representation issues, and because of Houle's illness.

7When they arrived in the Superior Court of Justice ("SCJ"), the three accused delayed setting a trial date. A Case Management Judge was appointed to take charge and to bring the case to trial expeditiously. He was successful and prevented what might have been a longer delay.

(2) The Application Judge's Ruling

(a) General

8The s. 11(b) application was argued on May 5 and 6, 2014, in anticipation of a jury trial set to commence on November 10, 2014.

9On June 4, 2014, the application judge dismissed the application, applying the framework established in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. When the application was argued, there had been 45 court appearances in total – approximately 37 were in the OCJ. The application judge found that no time had been waived by any of the accused, nor was any of the delay attributable to the conduct of the Crown. He found that the total amount of institutional delay was 18 ½ months – 8 months in the OCJ, and 10 ½ months in the SCJ. Measured against the total delay of 59 ½ months, the application judge found that the bulk of the delay was neutral time (as classified under Morin). He apportioned only about 6 months to defence delay.

10I will not examine each of the 45 appearances identified by the application judge. Instead, I focus on the areas that he considered problematic, the issues raised by the parties on appeal, and those relevant to the application of Jordan.

(b) Proceedings in the OCJ

11The case was in the OCJ for just over three years – December 15, 2009 (when charges were laid) until February 21, 2013 (committal for trial).

12As noted, one lawyer initially represented all three accused. He remained on the record for 15 months, until he was removed on April 13, 2011. In the meantime, he dealt with what everyone described as voluminous disclosure. On several occasions, the case was adjourned to accommodate defence counsel's request for more time to review disclosure. As these adjournment requests mounted, the Crown expressed concern about moving the case forward. It was not until October 8, 2010, that defence counsel was prepared to set preliminary inquiry dates for August and September of 2011.

13When defence counsel was removed on April 13, 2011, the Crown put on the record, and the court agreed, that "the prosecution and the courts have bent over backwards" to accommodate the case, and the schedule of defence counsel. Preliminary inquiry dates earlier than August and September 2011 were available, but were not selected by defence counsel. Unfortunately, the exact amount of time thrown away prior to April 13, 2011, was not specified. However, the Crown was emphatic that, despite counsel being removed, the preliminary inquiry dates be "protected" while the accused retained new lawyers.

14Following numerous subsequent appearances, it became clear on June 21, 2011, that the August/September 2011 preliminary inquiry dates could not be "protected". Because counsel had not been retained, new preliminary inquiry dates were set for February 13-17 and 21-24, 2012.

15In the meantime, on August 30, 2011, all three accused persons made Rowbotham applications.[1] The Crown contested the jurisdiction of a judge of the OCJ to grant such relief. The presiding judge reserved his decision. On September 13, 2011, prior to the release of this decision, McGill and Houle reappeared before the OCJ to advise they had received legal aid, but wished to convert their Rowbotham applications into a request for Fisher orders.[2]

16On September 27, 2011, the presiding judge determined that he lacked jurisdiction to grant the relief sought. The case was adjourned to the new preliminary inquiry dates in February of 2012. Subsequently, the appellant was unsuccessful on his Rowbotham application in the SCJ; McGill and Houle were unsuccessful in obtaining Fisher orders.

17Ultimately, the dates set for the second preliminary inquiry in February of 2012 were lost because McGill and Houle had still not fully retained counsel – their applications for legal aid were still being considered by the Big Case Management Team ("BCMT") of LAO. When they requested an adjournment, the appellant told the court, "Who am I to deny them their lawyer?" and "I don't think it makes any consequence to me Your Honour at this point."

18The Crown opposed the adjournment. It proposed pushing ahead with the preliminary inquiry. The Crown was permitted to call two witnesses from out of town. However, only one witness was heard because proceedings were halted when Houle was taken ill and rushed to the hospital. The preliminary inquiry was delayed a couple of times in response to Houle's situation. Ultimately, she could not continue, and the second preliminary inquiry dates were lost.

19Various appearances occurred in the aftermath of the second aborted preliminary inquiry. With the permission of the court, the appellant was not present on a number of these dates. On April 24, 2012, even though counsel for McGill and Houle were not yet formally on the record, new preliminary inquiry dates were set for December 2012. At this time, Houle expressed a desire for earlier dates; the appellant raised the issue of delay for the first time.

20The preliminary inquiry finally took place on December 7, 10, 12, 13, 17-19 of 2012 and January 30, 2013. McGill and Houle had counsel; the appellant did not. The accused were committed to stand trial on February 21, 2013.

(3) Proceedings in the SCJ

21The three accused arrived in the SCJ on May 10, 2013. Counsel for McGill requested that the case be adjourned until September 13, 2013. It was then adjourned to Assignment Court on November 29, 2013. The appellant did not object to these delays. In the meantime, a Judicial Pre-Trial Conference ("JPT") was adjourned because counsel had failed to file a Pre-Trial Conference Report (Form 17), as required by the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7), at r. 28.04.

22The new JPT date was scheduled for January of 2014. On the November 29 Assignment Court date, counsel for McGill attended on behalf of all accused to request that trial dates not be set until the delayed JPT was completed.

23Around this time, the Chief Justice of the SCJ designated the application judge as a Case Management Judge, under s. 551.1 of the Criminal Code. On January 24, 2014, the application judge set a date for the appellant's fresh Rowbotham application, to be heard on March 13, 2014. He also set May 5 and 6, 2014 as dates for the s. 11(b) application. On February 14, 2014, a four-to-five-week jury trial was scheduled to commence on November 10, 2014.

24On April 29, 2014, the Rowbotham application was denied: R. v. Baron (April 29, 2014), Sarnia, CR-13-1697 (S.C.). On May 6, 2014, a change of venue application brought by all accused was dismissed. On June 4, 2014, the s. 11(b) application was dismissed.

25On November 4, 2014, shortly before the trial, counsel for Houle appeared before the application judge (in his capacity as the Case Management Judge) to seek an adjournment of the trial. Ms. Houle had become very ill (with a different ailment). Counsel for McGill was prepared to consent to an adjournment. The appellant was not present, but raised no objection. In the interests of moving the case against the appellant and McGill forward, the application judge severed the prosecution against Houle. In making this decision, the application judge said:

So, when I look at the issues in the interests of justice, I am content to note that, prima facie, these three persons should be tried together because of the nature of the allegations. This is one allegation of a fraudulent scheme and it would in the normal course be best to try these persons together and it would be in the interests of justice to do so.

This is not the normal case because of the time that it has been before the court, because of the nature of the adjournment request now and the medical treatment necessary for Ms. Houle.

In my view, it is in the interests of justice for me to sever Ms. Houle from this indictment and I do so.

26The case went to trial as scheduled. The appellant was found guilty on December 1, 2014. He was sentenced on November 13, 2015.

(4) Findings and Analysis of the Application Judge

27The application judge found that the time leading up to setting the first preliminary inquiry dates (10 months) was neutral time, allowing for intake and disclosure. From the time that date was set (October 8, 2010) until defence counsel was removed from the record (April 13, 2011), the trial judge attributed two months as systemic delay.

28A good deal of time prior to the second preliminary inquiry was associated with the attempts of the co-accused to obtain funding for representation. Counsel for McGill and Houle tried to blame LAO for the delay. The application judge examined this issue and disagreed. As he said, at para. 45:

There is nothing about the record here that leads me to believe there was any mistake by LAO.… The system reacted as designed. There is nothing about this process that would require me to assess state or institutional delay. It may be that many counsel were reluctant to take on this case with a legal aid budget but the record reflects that LAO authorized travel and meal expenses which allowed Houle and McGill to expand their search area. They have now retained extremely competent counsel pursuant to that process.

29The application judge noted that, on February 13, 2012, an OCJ judge said that the applicants had been diligent in attempting to secure counsel and that the delays were not their fault. The application judge disagreed, at para. 46:

Applicant's counsel seeks to view this as judicial recognition of institutional delay. While the comment … may or may not have been accurate, I find that accuseds' meanderings through the legal aid process cannot be seen as delay occasioned by the state. At no time in this 5-month period were Houle and McGill ready for the preliminary hearing. I view this period as neutral.

30The next period of delay arose as a result of Houle's illness at the second preliminary inquiry. The application judge apportioned the period from February 13, 2012, to April 24, 2012, as neutral time, per the Morin framework.

31The application judge addressed the period from April 24, 2012 (the date on which the appellant first raised delay) until the next preliminary inquiry dates. He relied on this court's holding in R. v. Whylie (2006), 2006 CanLII 9037 (ON CA), 208 O.A.C. 247 that, "ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis." However, as the application judge observed, "[T]he Crown must consider severing the counts where it appears that the delay due to a co-accused is prejudicing the others", at para. 56. Although this ground was not argued before him on the s. 11(b) application, he considered whether the appellant's case should have been severed. Relying on R. v. L.G., 2007 ONCA 654, 229 O.A.C. 89, the application judge held that it is in the interests of justice that individuals charged jointly with an offence be tried together. The application judge stated, at para. 59:

I find that the concerns about inconsistent verdicts and multiple lengthy proceedings were very real here. In the circumstances of this prosecution, recognizing the right of the accused to a trial in a reasonable time, it would not have been in the interests of the administration of justice to sever the accused.

32Despite the authorities under Morin in favour of apportioning the entire 7 ½ month time as neutral, the application judge still apportioned 6 of the 7 ½ months to institutional delay, at para. 48. Thus, it appears that the application judge was more than generous to the appellant in apportioning institutional delay. Even on this approach, only 8 of the 38 months in the OCJ, from December 15, 2009, to February 21, 2013, were attributable to institutional delay.

33The application judge held that time between committal for trial (February 21, 2013) to the Assignment Court date (January 24, 2014) was intake time, and thus neutral. Part of the problem was the aborted JPT, caused by the failure of defence counsel to file proper materials. The rest of this period was caused by defence adjournment requests.

34As it turned out, trial dates were not actually set on January 24, 2014; they were scheduled on February 14, 2014. Nevertheless, the application judge classified the 10 ½ months between January 24, 2014 and the projected commencement of the trial, on November 10, 2014, as institutional delay.

35Turning to the issue of prejudice, the application judge recognized that a five-year delay caused some inherent prejudice. He also considered the appellant's evidence that he suffered from a degenerative eye condition. This made his drives from his home in Whitby to court appearances in Sarnia more onerous. However, the application judge noted that the appellant was accommodated numerous times by bench warrants with discretion.

36The application judge dismissed the appellant's complaints about his inability to travel outside of the province, and its impact on his investment business. The Crown had agreed to consider travel requests on a case-by-case basis. This offer was made in May of 2011. The appellant made no requests.

37Finally, considering society's interest in a trial on the merits, the application judge found that the institutional delay of 18 ½ months was only slightly above the guidelines prescribed by Morin, and not sufficient to find a breach of s. 11(b).

(5) Analysis

(a) The Jordan Framework

38The application judge made his ruling based on the governing authority at the time – Morin. His ruling was released two years before Jordan. Nevertheless, this appeal must be decided in accordance with Jordan.

39Because this case was tried in the SCJ, there is a presumptive ceiling of 30 months, after deducting "defence delay" from the total delay. Defence delay is comprised of delay that is waived by the defence (Jordan, at para. 61; Cody, at para. 27), and delay that is "solely or directly" caused by the actions or inaction of the defence (Jordan, at paras. 66 and 113; Cody, at para. 28).

40When delay exceeds the presumptive ceiling, it falls to the Crown to rebut the presumption of unreasonableness by demonstrating "exceptional circumstances". In Jordan, the majority of the Supreme Court defined exceptional circumstances as follows, at para. 69:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. [Emphasis in original.]

Exceptional circumstances fall into two general categories: discrete events and "particularly complex cases" (Jordan, at para. 71).

41Both types of exceptional circumstances are in play in this case. The majority in Jordan (at para. 72) identifies medical emergencies as a prime example of a discrete event. This figures prominently in relation to Houle's first illness. The concept of a "particularly complex" case is also relevant to this appeal. In Cody, the Court addressed the issue in the following way, at para. 64:

Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80). A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time" (Jordan, at para. 77…). When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79). [Footnotes omitted; emphasis added.]

The Court clarified, at para. 65, that voluminous disclosure is not necessarily emblematic of a complex case, although it might qualify as a discrete exceptional event within the framework.

42The final step in the Jordan analysis applies to cases already in the system when Jordan was decided – the transitional exceptional circumstance. This aspect of the Jordan analysis was addressed in this court's recent decision in R. v. Gopie, 2017 ONCA 728, in which Gillese J.A. said, at para. 119:

For cases in the justice system on the date of Jordan's release, a "transitional exceptional circumstance" applies if the Crown satisfies the court that the time the case took is justified based on the parties' reasonable reliance on the previous state of the law. This is a contextual assessment, sensitive to the manner in which the Morin framework was applied and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice when the proceedings began. Considerations of prejudice and the seriousness of the offence can inform whether the parties' reliance on the previous state of the law was reasonable. [Emphasis added.]

43In addition to Gopie, this court has decided numerous cases involving the transitional exceptional circumstance: see, for example, R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401; R. v. McManus, 2017 ONCA 188, 36 C.R. (7th) 261; R. v. Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426; R. v. D.C., 2017 ONCA 483; R. v. Mallozzi, 2017 ONCA 644; R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554; and R. v. Picard, 2017 ONCA 692. In each of these cases (with the exception of Picard), the appellants' trials had been completed before Jordan. In these circumstances, the Court in Jordan said, at para. 102: "Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one."

(b) The Application of Jordan

(i) Introduction

44I have concluded that the 59 ½ month delay in this case is justified under the Jordan framework. In addition to what I would call the primary Jordan factors (defence delay and exceptional circumstances), I would apply the transitional exceptional circumstance, focusing on the reliance that the parties and the trial judge placed on Morin.

45This case demonstrates the difficulties involved in reviewing a Morin-based decision under Jordan. Morin focused on institutional delay. The other categories of delay – defence delay, neutral time, intake time, and the inherent time requirements of the case – could not be visited upon the Crown. Thus, under Morin, it did not matter if a specific period of delay was considered defence delay or neutral because neither could be held against the Crown.

46Jordan discarded this classification scheme. Concepts such as neutral time, intake time, and the inherent time requirements of the case are no longer direct lines of inquiry – they are reflected in the presumptive ceilings: see Jordan, at para. 53. Now, it is critical to identify defence delay, as well as delays caused by discrete events.

(ii) Defence Delay, Discrete Events, and Case Complexity Under Jordan

47The trial judge only allocated about 6 months as defence delay. With respect, I would allocate 14 ½ months to defence delay. This would include 2 months to accommodate defence counsel's schedule in having a case management meeting in the OCJ (August 9, 2010 to October 8, 2010). I would allocate 2 months of defence delay to reflect that the first preliminary inquiry dates were set later than necessary to accommodate defence counsel.

48I would allocate the entire time between the date set for the start of the first preliminary inquiry (August 2, 2011) and the date set for the commencement of the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as defence delay. This delay was caused by the removal of counsel from the record and was the responsibility of all three accused. On appeal, counsel for the Crown submits that the entire period of time from counsel's removal (April 13, 2011) until the second preliminary inquiry (February 13, 2012), namely 10 months, should be deducted. While this position is not unreasonable, I would apply only 6 ½ months because the possibility of proceeding on the original dates might also be said to have been frustrated by other factors.

49Lastly, I would apportion 4 months of defence delay involved in finally setting a date for trial in the SCJ. The case was delayed by 9 months (May 10, 2013 to February 14, 2014). Some of this delay was caused by multiple defence adjournment requests, and the cancelled JPT.

50As a discrete event, I would also deduct from the total delay the entire period of time between the second and third preliminary inquiry dates (February 13, 2012 to December 7, 2012) – 10 months. This was triggered by Houle's illness, a matter completely beyond the Crown's control, which caused the time protected for the second preliminary inquiry to be lost. As discussed below, under my discussion of the transitional exceptional circumstance, I agree with the application judge that it was reasonable for the Crown to continue against all three accused; the Crown was not required to sever the appellant as a form of mitigation for this unforeseen event.

51From the total delay of 59 ½ months, I would deduct 24 ½ months for defence delay, and the delay caused by Houle's illness. Consequently, the net delay under Jordan is 35 months.

52While this exceeds the presumptive ceiling, the extra time that it took to bring this fraud prosecution to trial may be explained by the complexity of the case, taking into account the number of charges, the number of accused, the sophistication of the fraud, and the voluminous disclosure. I discuss the complexity of the case further in the following section.

(iii) The Transitional Exceptional Circumstance

53I would also rely upon the transitional exceptional circumstance to justify the delay involved in completing this trial. While determining the delay for Jordan purposes is a quantitative exercise (except when considering the complexity of the case as part of the exceptional circumstances category), the application of the transitional exceptional circumstance involves a qualitative analysis. At its core is the avoidance of unfairness to the parties caused by their reasonable reliance on Morin. Although the analysis at this juncture is qualitative, it is not without form. In Gopie, Gillese J.A. identified the criteria to be applied, at para. 178:

In R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, the majority decision discussed, as the relevant considerations informing the transitional exceptional circumstance analysis: (i) the complexity of the case; (ii) the period of delay in the excess of the Morin guidelines; (iii) the Crown's response, if any, to any institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused.

Applying these factors, the overall delay is reasonable under s. 11(b)

The Morin Guidelines

54The application judge properly applied the Morin framework. He engaged in a detailed review of the record and provided clear reasons for the conclusions that he reached.

55The application judge found that only 18 ½ months of the entire delay was institutional delay. The rest he attributed to defence delay and neutral time. Importantly, he found that the Crown did not cause any delay through its conduct.

56As I have explained above, the application judge could have allocated more time to defence delay. However, it made no difference to his ultimate determination of institutional delay, which is the focus of the Morin inquiry: see Jordan, at para. 52, n. 4.

57One period where more time should have been allocated as defence delay was the removal of defence counsel from the record. As I have already noted in para. 6, above, it was almost inevitable that a single lawyer could not represent all three accused persons in a large-scale fraud prosecution such as this one. A good deal of time was wasted in this 15-month period of joint representation.

58When counsel was removed, it set off a chain of events that lingered the entire time that the case was in the OCJ. The case had a difficult time recovering from this event; it had to start all over again. All accused scrambled to find new counsel. After much time and effort, involving multiple applications in both the OCJ and the SCJ, McGill and Houle were successful; the appellant was not.

59The Crown was not in any way responsible for this event. It had not sought the removal of defence counsel. When counsel was removed, the Crown and the court were placed in a holding pattern, while the accused struggled to retain counsel. The retention of counsel and the extensive involvement of LAO was properly characterized by the application judge as part of the inherent time requirements of the case under Morin: see R. v. Boateng, 2015 ONCA 857, 128 O.R. (3d) 372; and Picard, at para. 90.

60Further challenges were created by Houle's illness as the preliminary inquiry was scheduled to proceed in February of 2012. Mr. Stein argues that the Crown ought to have severed Houle at this point. I disagree.

61This event must be viewed in a broader context. Just before Houle became ill, the spectre of an adjournment had already arisen. The appellant was prepared to consent to this adjournment. However, the Crown was not – it wished to push ahead full-steam, or at least mitigate the fallout by calling some out-of-town witnesses. This constructive approach was ultimately undermined by Houle's illness. None of the accused requested severance at this point. The appellant certainly did not. He was content that the case be adjourned. It was only a few months later (on April 24, 2012) that he raised the issue of delay for the first time.

62Operating within the Morin framework, the application judge was correct to treat the delay caused by the co-accused as neutral time: see Whylie, at para. 24; and L.G., at paras. 62-63. He also recognized the importance in trying co-accused together, a principle that was recently endorsed by this court in R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, per Watt J.A., at paras. 245-255.

63This case is not like R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, in which Mr. Vassell's persistent and proactive efforts to have a trial as soon as possible were thwarted by the delay caused by his six co-accused.

64Here, the appellant was content with the pace of the proceedings, never raising the issue of severance. Severance was not appropriate in any event, given the complexity of the case, the nature of the allegations, and the evidence common to all three accused.

65Mr. Stein says it is ironic that, as the trial was about to get started, Houle was severed from the appellant and McGill. I see no irony here. Houle suffered with a serious illness (different from her previous illness). She had undergone surgery, and was receiving other treatment. Further surgery was anticipated. Her counsel moved to have the trial adjourned. The Crown resisted. Given the amount of time that had passed, and on the eve of trial, severance was the only option realistically available to the Case Management Judge. This unforeseen and most unfortunate development ought not to reflect negatively on the Crown's previous failure to seek severance when the case was in the OCJ.

66Returning to the criteria set out in Gopie, at para. 53 of my reasons above, the institutional delay in this case of 18 ½ months exceeded the Morin guidelines, but only slightly. When the complexity of this case is considered, the delay was reasonable.

Case Complexity

67The case was complex. From the first appearance onwards, this was how everyone characterized the case – judges, the Crown, defence counsel, and the appellant. On appeal, Mr. Stein (whose submissions were restricted to the 11(b) issue) backs away from this characterization. He points to the shortness of the trial and the relatively brief instructions to the jury. On the other hand, the appellant, who argued grounds of appeal related to the trial judge's jury instructions, contended that the instructions were deficient because they failed to reflect the complexity of this large-scale fraud prosecution.

68From the outset, it was apparent that the case was complex. It involved three accused persons, 22 victims, and millions of dollars in losses. In the early days of this prosecution, approximately 10,000 pages of materials were disclosed. Defence counsel required multiple adjournments to get a handle on the case. On one appearance, he told the judge that it was fortunate that he was able to rely upon his associates because, if he were a sole practitioner, he would not have been able to manage on his own.

69The complexity of the case, and the accompanying voluminous disclosure, no doubt hampered the accused in retaining new counsel. It is also worth noting that LAO considered the case to be complex. The BCMT became involved in the ongoing funding decisions about the case in relation to McGill and Houle.

70Mr. Stein argues that, because the trial took only eight days of court time, the case was straightforward. However, the Crown, defence counsel for McGill and Houle, and the very experienced Case Management Judge determined that a reasonable period of time for trial was four to five weeks. The case did not shed its complexity merely because the trial was shorter than anticipated.

71In gauging the complexity of the case, it is an error to focus exclusively on the end product – the trial. Case complexity must be evaluated over the course of the entire proceedings. As Rouleau J.A. held in Picard, at para. 62:

A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial…. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.

These observations apply to this case.

72Although the application judge used Morin principles to conclude that the case was complex, his finding is supportable under the Jordan framework: see Gopie, at para. 172.

The Seriousness of the Offences

73In cases applying the transitional exceptional circumstance, the seriousness of the alleged offences remains a significant consideration: see Cody, at paras. 70-71; Picard, at para. 79; and Gopie, at para. 119.

74The seriousness of this case is illustrated in this court's decision in relation to the Crown's appeal of McGill's sentence. The trial judge sentenced McGill to a 23-month conditional sentence. This court allowed the appeal and imposed a four-year penitentiary term: see R. v. McGill, 2016 ONCA 139. As the court said, at paras. 7 and 16:

The offences have had a significant impact on the lives of the 22 victims. Several lost their homes. Some have declared bankruptcy and others have had their retirement years ruined.

Given the size of the fraud, the lengthy time period over which it took place, the motivation of greed, the breach of trust, the number of victims, and the devastating impact on those victims, a penitentiary sentence was required. Baron was sentenced to six years in prison for his role in these offences. It was Baron who instigated the scheme and took the majority of the benefits from it. Given the respondent's lesser degree of culpability, in our view, a fit sentence is four years' imprisonment.

75These after-the-fact observations fortify the application judge's conclusion. They validate the societal interest in having this case tried on its merits.

The Crown's Response and Defence Efforts

76Mr. Stein argues that the prosecution of this case exemplifies the "culture of complacency within the system towards delay": Jordan, at para. 4. I disagree.

77A careful review of the record reveals that the Crown was always anxious to move things forward. The only shortcoming the appellant is able to identify is the Crown's failure to sever the accused after the second preliminary inquiry collapsed, a submission to which I would not give effect. The Crown took all reasonable steps to keep the case moving towards trial.

78Similarly, judges in both the OCJ and the SCJ did not display a complacent attitude towards the progress of the case. This was not a case in which the three accused continually bounced from judge-to-judge as the case proceeded to trial. In the OCJ, a single judge stayed with the case and was present at almost all appearances. He was knowledgeable of the history of the case and responded to events as they happened. Similarly, in the SCJ, a Case Management Judge was appointed under s. 551.1 of the Criminal Code. He was proactive and efficient in bringing the case to trial as quickly as possible. He heard all of the applications associated with the case, including the one under appeal.

79For the most part, the appellant seemed satisfied with the pace of the proceedings. When the second preliminary inquiry dates were about to be lost, the appellant said – "Who am I to deny them their lawyer?" and "I don't think it makes any consequence to me Your Honour at this point." It is true that he raised s. 11(b) in the OCJ, and again in the SCJ. However, there are numerous examples in the record of the appellant allowing the process to unfold as it did, not voicing complaints about the pace of the proceedings.

Conclusion

80I end this section by referring to a passage from Pyrek. Writing for the court, Laskin J.A. examined Jordan and said the following, at para. 32:

Finally, in Jordan itself, at para. 98, the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization. The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling. And the delay was [not] caused by… "repeated mistakes or missteps".

See, also, Gordon, at para. 24, in which Doherty J.A. referred to the same passages from Jordan and said, "The language in the above-quoted passage describes a narrow category of cases."

81This case is not one of those "narrow category of cases" for which a stay is warranted. The net delay in this case did not "vastly" exceed the presumptive ceiling. Throughout the proceedings, all parties were completely faithful to Morin. They governed themselves in accordance with that regime, having no idea that the landscape was about to radically shift. It would be unfair to measure the Crown's conduct strictly by Jordan standards, with no allowance for its reasonable reliance on Morin.

82I would dismiss this ground of appeal.

C. The Charge to the Jury

83The appellant advanced other grounds of appeal without the assistance of duty counsel. He provided written submissions in support of his arguments.

84The appellant argues that the trial judge's final instructions to the jury were "unfair, brief, unbalanced, prejudicial and undermined his defence." He makes a litany of complaints, including: (a) the trial judge spent too much time focused on the Crown's case to the detriment of the appellant's position; (b) the trial judge failed to mention a document, marked as Exhibit "A", containing the appellant's objection to the court's jurisdiction to conduct the trial; (c) the trial judge told the jury that they were not to treat the appellant any differently because he was self-represented; (d) the trial judge mischaracterized the evidence of an auditor called by the Crown as part of its case; (e) the trial judge failed to refer to portions of the cross-examination of an RCMP officer; (f) the trial judge erred in describing McGill's cross-examination as it pertained to Exhibit "A"; and (g) the charge was brief, unbalanced, and encouraged the jury to find the appellant guilty.

85I would not give effect to any of these complaints. In R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, the Supreme Court of Canada prescribes a functional approach to reviewing jury charges. This entails reviewing the charge as a whole, and not dissecting isolated passages. In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, the Court held, at para. 31:

The standard that a trial judge's instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard, at para. 2. It is the overall effect of the charge that matters.

86The trial judge's instructions as a whole meet these requirements. Although the trial judge may not have instructed the jury in the manner in which the appellant had hoped, a review of the instructions as a whole reveal that she approached her task in a fair and even-handed manner. The charge was not biased in the way that the appellate claims. It was responsive to the fact that the bulk of the evidence was introduced in the Crown's case.

87The appellant's complaint about the manner in which the trial judge dealt with Exhibit "A" is baseless. Exhibit "A" is an affidavit sworn by the appellant, with many attachments. In it, the appellant advances a "Freeman-on-the-Land" claim, objecting to the jurisdiction of the court to try him.

88The appellant introduced this document at the beginning of the trial. The trial judge dismissed the appellant's jurisdictional claim. Because the document was made a lettered exhibit, the jury never saw it. As part of the Pre-Charge Conference, the trial judge expressed concern that, if the jury were to see this document, the appellant might be prejudiced. The following exchange took place:

The Court: And I think my view is that it would be highly prejudicial to you if the jury saw this.

The Appellant: Okay. Fine, Your Honour.

89Similarly, I would not give effect to the appellant's arguments about the manner in which the trial judge dealt with other, individual pieces of evidence. I am not persuaded that she erred in the manner that the appellant claims.

90I would reject this ground of appeal.

D. The Sentence Appeal

91The appellant initially appealed his convictions and his sentence. No materials were filed in relation to the sentence appeal. At the hearing of the appeal, the appellant made no submissions on the issue; Mr. Stein made no submissions on the appellant's behalf. Although a Notice of Abandonment has not been filed in relation to the sentence appeal, in all of the circumstances, I would dismiss the sentence appeal as abandoned.

E. Conclusion

92I would dismiss the appeals from conviction and sentence. I would also like to express my appreciation to Mr. Stein for the able manner in which he assisted the appellant on the s. 11(b) portion of this appeal.

Released: October 5, 2017

"Gary T. Trotter J.A."

"I agree. E.E. Gillese J.A."

"I agree. Grant Huscroft J.A."

Footnotes

1This refers to an application, based on R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 25 O.A.C. 321 (C.A.), to have counsel appointed by the court and funded by the Attorney General.

2This refers to an application, based on R. v. Fisher, [1997] S.J. No. 530 (Q.B.), for an order requiring Legal Aid Ontario ("LAO") to pay counsel above the standard legal aid rates.