Her Majesty the Queen v. Craig Charity, 2022 ONCA 226

COURT OF APPEAL FOR ONTARIO

DATE: 2022-03-21 DOCKET: C65706

Tulloch, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Craig Charity Appellant

Counsel: Andrew Guaglio and Michelle Psutka, for the appellant Michael Fawcett and Andrew Hotke, for the respondent

Heard: September 8, 2021 by video conference

On appeal from the conviction entered on April 11, 2018 by Justice Graham Wakefield of the Ontario Court of Justice, and from the sentence imposed on August 17, 2018.

Tulloch J.A.:

OVERVIEW

[1] The appellant was convicted of defrauding a business partner of $378,491.60. The fraud arose out of fraudulent invoices and receipts he tendered as legitimate business expenses. As a result of his conviction, he was sentenced to 18 months incarceration followed by three years of probation and a restitution order for the full amount of the fraud. He now appeals his conviction and seeks leave to appeal his sentence.

[2] The appellant raises two issues on his conviction appeal. First, he submits that the trial judge erred in dismissing his s. 11(b) application. Second, the appellant submits that the trial judge erred in his analysis under the third branch of R. v. W.(D.), [1991] 1 S.C.R. 742, by using his disbelief of the appellant’s evidence to bolster the Crown’s proof of guilt.

[3] With respect to the sentence appeal, the appellant submits that the trial judge imposed a sentence that effectively doubled the amount of expenses he found to be fabricated or inflated. He submits that this alleged error warrants adjustments to both the custodial sentence imposed and the quantum of restitution ordered.

[4] The Crown submits that the appeal should be dismissed, or in the alternative, the Crown raises a new issue on appeal with respect to the appropriate remedy that should be imposed if a s. 11(b) violation is found. The Crown submits that if this court finds that the trial judge erred in his s. 11(b) analysis, we should revisit the remedies available under s. 24(1) of the Charter for s. 11(b) violations and impose a sanction other than a stay of proceedings.

[5] For the reasons below, I would allow the appeal based on a s. 11(b) violation. I would not give effect to the Crown’s new argument of revisiting the stay remedy. While this conclusion is determinative of the appeal, for completeness I will also address the appellant’s W.(D.) argument and sentence appeal.

[6] On March 24, 2015, the appellant was arrested for fraud and released on a promise to appear. His first appearance date took place on April 13, 2015. A subsequent court appearance was scheduled for May 11, 2015; however, defence counsel failed to appear or arrange for an agent and a judicial pre-trial could not be scheduled in his absence. The parties appeared again on June 1, 2015, and a judicial pre-trial was scheduled for July 24, 2015, the first available date for the defence.

[7] On July 24, 2015, the judicial pre-trial proceeded as scheduled via telephone, but both the appellant and his counsel were absent. The case was adjourned to August 10, 2015. On August 10, the Crown and defence counsel scheduled a preliminary hearing to be held on May 11-12, 2016.

[8] On March 4, 2016, defence counsel applied to be removed from the record. The preliminary hearing dates were preserved. On May 11, 2016, the appellant waived his right to a preliminary inquiry and re-elected trial in the Ontario Court of Justice with the Crown’s consent. A second judicial pre-trial was scheduled for June 17, 2016. The appellant also waived his s. 11(b) right until the next court appearance.

[9] On June 17, 2016, the judicial pre-trial was adjourned to July 19, 2016, as the defence was not prepared to proceed. The Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, setting out the new approach to s. 11(b), was released on July 8, 2016. At the judicial pre-trial on July 19, a status hearing was set for February 1, 2017. Trial dates were set for May 8-10 and 15-18, 2017.

[10] In the months leading up to the status hearing, defence counsel and the Crown discussed the potential need for additional trial days. The trial coordinator advised them that adding trial days might be difficult and could lead to significant delay.

[11] The status hearing proceeded on February 1, 2017 and was followed by a second status hearing on March 20, 2017. At the second status hearing, defence counsel noted difficulties in preparing for trial due to two Crown re-assignments. Between March and May 2017, the Crown made further disclosure.

[12] The trial took place on May 8-10 and 15-18, 2017 and was adjourned to September 18 and 21, 2017 for completion. On September 21, the trial judge requested written submissions from both parties. The defence requested to provide its submissions after the Crown. The deadline for Crown submissions was set for December 15, 2017. On December 1, 2017, the deadline for defence submissions was set for January 15, 2018.

[13] By the parties’ next court appearance on January 23, 2018, the defence had filed a s. 11(b) application. The matter was adjourned to February 9, 2018, for the delivery of the ruling. The matter was further adjourned to March 16, 2018, and then to April 11, 2018, due to the volume of the submissions and because the trial judge was ill.

[14] On April 11, 2018, the trial judge denied the s. 11(b) application and convicted the appellant of fraud over $5,000. The trial judge delivered his reasons for sentence on August 17, 2018.

THE SECTION 11(b) BREACH

[15] The parties at trial agreed that the ceiling for presumptively unreasonable delay was 30 months according to Jordan. The Crown conceded that the total delay was 36 months and 10 days but argued that the net delay was 18 months and 28 days.

[16] The trial judge agreed with the Crown. The appellant was responsible for the delay caused when preliminary hearing dates could not be arranged at the July 24, 2015 judicial pre-trial because the defence both failed to appear and failed to arrange for an agent to obtain preliminary hearing dates. There were also several discrete exceptional circumstances. First, the defence’s underestimation of the time necessary for trial required the late addition of further trial dates. Second, the defence counsel’s request for the Crown to make its written submissions before the defence was an implicit waiver by defence counsel. Furthermore, the one-month period where the trial judge was ill was also counted as a discrete exceptional circumstance. Therefore, the net delay was 18 months and 28 days.

[17] The appellant now submits that the trial judge erred in his s. 11(b) analysis by finding that the total delay fell below the Jordan ceiling. The appellant argues, and the Crown concedes, that the trial judge incorrectly identified the presumptive ceiling for delay and therefore erred in finding his s. 11(b) rights were not violated. In fairness to the trial judge, he did not have the benefit of this court’s decision in R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, explaining which presumptive ceiling applies when a re-election occurs. However, the Crown argues that a stay of proceedings is not the appropriate remedy for this Charter violation and that a lesser remedy can and should be imposed.

[18] I address first the Crown’s fresh evidence application. Next, I will deal with the procedural arguments as to whether the Crown should be permitted to raise this new issue on appeal. I will then briefly discuss the proposed remedy framework itself, before providing some concluding remarks.

(1) The Crown’s Fresh Evidence Application

[19] The Crown seeks to admit fresh evidence to substantiate its argument as to why the court should re-visit the issue of the appropriate remedy for s. 11(b) violations. I would not admit the proposed fresh evidence for the following reasons.

[20] The Crown seeks to admit two pieces of fresh evidence. The first is email correspondence between the Crown and defence counsel in which defence waives a period of delay. The Crown argues that this email provides context to the circumstances under which the Crown consented to the appellant’s re-election. In my view, having regard to the test set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, I would not admit this evidence.

[21] This correspondence could have been provided as evidence at the trial. I do not find the Crown’s explanation for its omission satisfactory: the Crown states that it only became relevant once the parties realized the correct presumptive ceiling was 18 months and not 30 months. In my view, given that under either ceiling the email goes to the issue of waiver of delay, it should have been adduced at trial. In any case, the Crown concedes that there was a violation of the appellant’s s. 11(b) rights, so I am not entirely clear on the purpose this evidence serves.

[22] The second piece of fresh evidence the Crown applies to admit is statistical evidence on the number of active pending criminal trial cases and their average time for disposition in the Ontario Court of Justice and in the Superior Court of Justice between 2015 and 2021. The Crown argues that it is relevant to understanding the impact of Jordan on delay and the circumstances that it argues warrant revisiting the s. 11(b) remedy.

[23] This information was not available at trial. The appellant opposes the admission of this evidence. I agree with the appellant that there are concerns about the accuracy and usefulness of the statistical charts: they are not accompanied by an affidavit by the person(s) who assembled the data. Furthermore, the charts themselves indicate that their accuracy is not guaranteed and should be approached with caution, and they do not provide any meaningful insights as to the appropriateness of a stay as a remedy.

[24] In my view, having regard to the test in Palmer, while this information could be useful if it were credible, it cannot possibly affect the issue of whether to adopt a new approach to the s. 11(b) remedy, given some of the concerns with its accuracy. As such, the application to admit fresh evidence is denied.

(2) The Crown Raises a New Issue on Appeal

[25] The Crown submits that a stay of proceedings should no longer be the single available remedy for a breach of s. 11(b) rights; instead, a spectrum of remedies, including a stay, is available and could be ordered under s. 24(1). Examples of such remedies are the following: relaxed bail terms to alleviate liberty restrictions; enhanced credit for pre-trial custody; an order to expedite the proceeding; a declaration of a Charter violation; and a sentence reduction. The purpose of employing a spectrum of remedies is to target the actual prejudice caused by the delay, as opposed to simply ending the proceeding. Which remedy would be most appropriate would depend on what harm the accused person suffered.

[26] The Crown raises this issue of a new remedy for the first time on appeal. The appellants argue that it should not be permitted to do so for three reasons:

1. New issues that expand the scope of litigation should not be allowed on appeal;
2. Stare decisis dictates that only the Supreme Court can revisit the remedy for s. 11(b) breaches; and
3. This court does not have jurisdiction to implement a new remedy for s. 11(b) breaches.

[27] I am persuaded by the appellant’s arguments. In my view, the Crown is precluded from a procedural perspective from raising this issue on appeal. I will address each of the appellant’s arguments in turn.

(a) The Scope of the Litigation

[28] Generally speaking, if a new issue on appeal would expand the scope of the litigation, the court should not permit the issue to be argued: R. v. Richards, 2015 ONCA 348, 323 C.C.C. (3d) 490, at para. 49. In making this determination, a court should consider whether the interests of justice require an exception to the normal and accepted course of litigation and whether there is a proper or sufficient factual and evidentiary record to determine the issue: Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 42 O.R. (3d) 229 (C.A.), at p. 233.

[29] Each of these factors weighs against the Crown. The issue of new remedies for s. 11(b) breaches expands the scope of the litigation greatly; the appellant did not anticipate arguing the issue of a remedy if a breach were found, given the longstanding jurisprudence that a stay of proceedings must follow from a breach of s. 11(b).

[30] Additionally, I am not persuaded the interests of justice require an exception in this case. As in Perez, there was no reason this argument could not have been advanced at trial. The Crown states that the argument was not raised at the trial because a s. 11(b) argument (presumably by the defence) was unlikely to be successful. In my view, it would have been reasonable for the Crown to anticipate the possibility that the trial judge would not agree with their calculation of delay and would instead find that there was a s. 11(b) breach; in that case, the issue of remedy would have been engaged, and the Crown could have argued for a different remedy.

[31] There is also the issue of the factual record. As observed by this court in the past, when issues are raised for the first time on appeal, the factual record can often be deficient because the new issues were not thoroughly canvassed below. I too adopt this observation. R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No. 432, at paras. 42-43, sets out the hurdles to be overcome in such instances:

[42] The burden is on the party who seeks to raise the new issue on appeal to bring the argument to be advanced within the exception to the general prohibition. It is incumbent on that party to demonstrate that all the facts necessary to address the proposed issue are as fully before the appellate court as they would have been had the issue been argued at trial. As the evidentiary disputes generated by the materials first filed on appeal mount, the likelihood that an appellate court will hear the argument diminishes.

[43] A party who seeks to escape the grip of the general prohibition against raising issues for the first time on appeal must meet or satisfy three preconditions:

(i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal; (ii) the failure to raise the issue at trial must not be due to tactical reasons; and (iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal. [Citations omitted.]

See also R. v. Greer, 2020 ONCA 795, at para. 91.

[32] Only the first precondition is at issue in this case: there are no allegations that the failure to raise this issue was tactical, and no miscarriage of justice would result from refusing to hear the issue, given that the current remedy has long been considered the appropriate remedy.

[33] With respect to the first precondition, the concern that the evidentiary record may not be sufficient is most apparent in the face of the application to admit fresh evidence on this point. However, even if the fresh evidence were admitted, I agree with the appellant that it is questionable whether this evidence, along with other evidence on the record, creates a sufficient factual record: as noted above, the statistics urge caution in relying on their accuracy, which is precisely what the Crown seeks to do. The statistics also state that the data:

[I]s being provided with the consent of the Ontario Court of Justice for the purpose specified in the request. This data is not to be used for another purpose or shared with any other person or organization without the OCJ’s consent.

It is not clear what the purpose of the request was and, in turn, whether this court should be relying on it.

[34] Moreover, in my view, this evidence should have gone before a trial judge to determine its probative value; the weighing of this evidence should not be done without the benefit of a trial judge’s reasons in the regular course of an appeal. This court in R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 7, acknowledged that it will be rare to allow an argument based on a fresh evidentiary record:

An appellate court will be most inclined to exercise its discretion in favour of hearing a new argument where that new argument can be fully addressed and determined based on the trial record. More rarely, an appellate court will hear a new argument based on an evidentiary record laid out for the first time in the court of appeal. [Emphasis added.] [Citations omitted.]

[35] This is not the type of rare case that warrants an exception.

(b) Stare Decisis

[36] In my view, the principle of stare decisis also precludes this court from acceding to the Crown’s request to change the established remedy of a stay for a s. 11(b) breach.

[37] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42, 44, the court explained that the threshold for revisiting a matter decided by a binding authority is not a low one:

[42] Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

[44] [A] lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. [Emphasis added.]

[38] The Supreme Court reaffirmed this two years later in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44:

The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”. [Citations omitted.]

[39] The conditions justifying a departure from binding precedent are not present here. It is instructive to consider the comments of the Supreme Court in Jordan, at para. 39, on how “[t]he framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it”. In the absence of analogous doctrinal or practical problems with applying the s. 11(b) remedy, I am hard-pressed to find a sufficient change in circumstances to warrant departing from the binding precedent which has been established over the last thirty years with respect to the remedy of a stay for a s. 11(b) Charter breach.

[40] I do not agree with the Crown that the re-formulated test in Jordan is a sufficiently significant or abrupt change in the law to warrant considering an entirely new remedy. While Jordan re-formulated the test for determining whether there was unreasonable delay, the underlying principles and the imperative to staunchly protect s. 11(b) rights remained the same. Although Jordan’s new framework was “a departure from the law that was applied to s. 11(b) applications in the past” and “a significant shift from past practice”, on the facts before the court, the re-formulated test does not make a stay of proceedings any less appropriate of a remedy for unreasonable delay, nor does it re-open the question of what an appropriate remedy would be: at paras. 93, 108.

[41] I also disagree with the Crown that this court’s decision in Shaikh constitutes an abrupt change in the law. In Shaikh this court explained that when an accused person re-elects to trial in the provincial court, the 18-month ceiling applies. As Paciocco J.A. explained in Shaikh, at para. 53, the court was merely applying the comments in Jordan:

I appreciate that Jordan did not involve a re-election, and so this issue was not directly before the court. However, Jordan was not about delay in a provincial court trial either. In the interests of certainty and simplicity, the majority nonetheless established an authoritative framework for provincial court trials as well, setting a presumptive period of unreasonable delay of 18 months. In the circumstances, I do not feel at liberty to interpret the criterion specifically identified by the Jordan majority as a passing comment when it is manifest that the majority was delineating how its presumptive delay framework was to apply.

[42] Therefore, I find that stare decisis also precludes the Crown from advancing its argument on a new remedy.

(c) Jurisdiction

[43] The Crown further argues that s. 24(1) of the Charter specifically provides courts with a broad jurisdiction to remedy a Charter breach. Section 24(1) reads as follows:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[44] The Crown’s position is that a stay of proceedings is not a mandatory remedy for s. 11(b) violations but that the court can impose a remedy that is tailored to the specific circumstances of the case.

[45] There have been somewhat differing approaches to the issue of jurisdiction in the s. 11(b) context. In Mills v. The Queen, [1986] 1 S.C.R. 863, the majority stated that the language of s. 24(1) did not support a view that a court loses jurisdiction when there is a Charter breach, and that such an interpretation of s. 24(1) would remove the discretion afforded under s. 24(1) to impose the appropriate remedy in the circumstances of the case: at pp. 964-65. Justice La Forest, concurring, expressed a similar view that unreasonable delay does not give rise to a jurisdictional issue and that to require a stay in every case would “give the right in s. 11(b) a pre-eminence over other Charter rights” which is contrary to the language of the Charter and social values: at p. 973. In contrast, Lamer J., dissenting, stated that s. 11(b) creates a right not to be tried once there has been unreasonable delay, and that a stay of proceedings is the minimum remedy: at p. 947.

[46] Just a year later, in R. v. Rahey, [1987] 1 S.C.R. 588, the issue was addressed once again. A majority of the court determined that a stay of proceedings is the minimum remedy for a s. 11(b) violation, though the court was divided as to the reasons why. Justice Lamer stated, at p. 614, that once there is unreasonable delay, “no court has jurisdiction to try [an accused] or order that he be tried in violation of that right”: at p. 614. Justice La Forest took an opposite view, opining that a trial judge “has at his or her disposal the fullest range of criminal remedies, including, for example, a reduction in sentence”: at p. 630.

[47] While there is merit to the Crown’s argument that a court does have jurisdiction to order a remedy other than a stay of proceedings based on the language of s. 24(1) in the absence of a clear holding from a majority of the Supreme Court that jurisdiction is lost after unreasonable delay, I do have some concerns with this argument. I am not satisfied that there is sufficient reason for this court to depart from the binding precedent of our court and the Supreme Court. As I explained in the section on stare decisis, I am not satisfied that this case and the current state of the law warrant departing from established precedent; I would leave that question to the Supreme Court. Moreover, this court has recently re-affirmed in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, and in R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, that it is settled law that the only remedy for a s. 11(b) violation is a stay of proceedings.

[48] For these reasons, this argument too must fail, and I would not permit the Crown to advance its proposed remedy on this appeal.

(3) The Crown’s Proposed Remedy

[49] Even if the Crown were permitted to raise the issue of remedy on appeal, I am not persuaded by its proposed remedy. The Crown proposes that a stay should be granted only if the accused could satisfy the following test, modified from the abuse of process context as explained in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32:

1. There must be actual prejudice to the accused’s interests protected by s. 11(b) that will be manifested, perpetuated or aggravated by continuing the proceedings beyond the limits of permissible delay;
2. There must be no other remedy capable of redressing this prejudice; and
3. If there is still uncertainty over whether a stay is warranted, the court is required to balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

[50] The Crown contends that this approach would not re-inject the concept of prejudice into the s. 11(b) analysis but simply aligns with “nearly every other legal test for assessing and remedying a Charter violation” by balancing individual and societal interests.

[51] I do not agree. The difficulty with this proposition is that it does in fact re-inject prejudice into the s. 11(b) analysis in a manner that invites uncertainty. On the matter of “actual prejudice”, the court in Jordan noted, at para. 33, that “actual prejudice can be quite difficult to establish, particularly prejudice to security of the person or fair trial interests”. It is not clear how the Crown’s proposed test for a stay would not re-introduce this difficulty and place an added burden on the accused. Furthermore, considering the Supreme Court’s statement in Jordan, at para. 54, that presumed prejudice resulting from unreasonable delay is not a rebuttable presumption in the s. 11(b) breach analysis, it seems to me counterproductive to require an accused to show actual prejudice in order to vindicate the violation of their s. 11(b) right.

[52] The presumption is that the accused will have suffered prejudice to their rights to liberty, security of the person, and fair trial interests. Notwithstanding the Crown’s submissions, I cannot see how continuing a trial that has become presumably unfair, with the addition of discrete remedies, reverses or cures the unfairness that was suffered.

[53] The Crown submits their approach would encourage accused persons to seek remedies before or immediately when delay becomes an issue or “crystallizes”. However, it is not clear how an accused person would establish that they are entitled to a remedy for delay that has not yet become presumptively unreasonable, particularly if there is no appropriate remedy other than a stay.

[54] One can think of a hypothetical situation in which an offender is charged with a serious violent or personal injury offence. If they were to bring an application for a remedy before presumptively unreasonable delay, relaxed bail conditions may not be in the interest of public safety. Furthermore, having not been convicted yet, enhanced pre-trial custody credit and reduced sentence are equally unavailable. Similarly, an order to expedite the proceedings may be frustrated by institutional constraints or constraints of the proceeding, such as where there is a co-accused. This situation would only create more difficulties in terms of predictability and consistency.

[55] Therefore, I find that the Crown’s proposed remedy does not present a workable alternative to a stay of proceedings.

(4) Disposition of this Ground of Appeal and Concluding Remarks

[56] For the foregoing reasons, I would dismiss the Crown’s fresh evidence application and allow the appellant’s appeal. Both parties concede that there was a s. 11(b) breach, and I would not give effect to the Crown’s request that this court impose a remedy other than a stay. A stay of proceedings is the appropriate and only available remedy.

[57] Before concluding, I am compelled to address some of the language used in the Crown’s factum. The role of the Crown in criminal proceedings has been long established: it must execute its duties ardently but fairly and in a balanced manner. The Crown’s case must be presented “firmly and pressed to its legitimate strength but it must also be done fairly”: Boucher v. The Queen, [1955] S.C.R. 16, at p. 24.

[58] In the present case, the language of the Crown in some instances exceeded this responsibility in a pejorative manner. In its factum, the Crown describes the issuance of stays under Jordan as “automatic judicial guillotines, without any nuance or balance, giving the guilty a windfall and the innocent a brushoff and depriving society of the truth”. The Crown also criticizes the remedy as “an abdication of justice”.

[59] In my view, these are not fair characterizations of Jordan and the remedy for unreasonable delay, and the language used by the Crown goes beyond a mere difference in opinion. A stay of proceedings under Jordan does not issue as of right once the presumptive ceiling has been breached. At that point, the onus shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances: Jordan, at para. 105. This is uncontroversial. This approach allows for the nuance and balance which the Crown mistakenly argues is missing. The Crown’s description of stays in such instances as “automatic judicial guillotines” is extreme and inappropriate.

[60] It is true that a stay of proceedings precludes a case from being determined on its merits and that this may benefit an accused person while also harming the victims of a crime. However, the Crown’s presentation is not fair in that it is one-sided. Neither is it just to the accused (who is presumed innocent), the public, or to the victims to allow a case to continue past reasonable delay, with the tepid comfort of interim measures. The Jordan framework is cognizant of this tension: see Jordan, paras. 19-28. The framework accounts for a balanced approach in the assessment of unreasonable delay; however, once that delay becomes unreasonable, there must be finality to the proceedings through a stay. The spirit of a stay of proceedings for unreasonable delay is not to give innocent parties “the brushoff” or unnecessarily deprive the public of the truth, but rather to uphold public confidence in the administration of justice through a careful and intentional framework.

[61] I want to be clear: counsel should not be discouraged or deterred from bringing critical perspectives of the administration of justice before the courts. Critical perspectives form part of a healthy justice system. Those critiques, however, must be advanced in a manner that is fair and is not needlessly incendiary. In my view, the Crown’s factum in this matter failed to achieve this balance.

[62] Though my determination of the s. 11(b) breach is dispositive of this matter, for completeness I will next address the appellant’s arguments respecting the trial judge’s W.(D.) analysis as well as the sentence appeal.

THE W.(D.) ANALYSIS

[63] The appellant submits that the trial judge erred in his W.(D.) analysis by using his rejection of the appellant’s testimony as positive evidence of his guilt. I disagree.

[64] To substantiate this ground of appeal, the appellant highlights two paragraphs in the judge’s reasons in which the trial judge made the following statements:

[71] My rejection of the Defendant’s explanations for the numerous contradictions in his testimony and continuous demands for more funds from the Complainant together with the reliable and credible testimony and records of the independent witnesses set out in the Crown case amounts to proof beyond a reasonable doubt and as stated I find the Defendant guilty of Fraud Over.

[83] Given the numerous examples of the Defendant asserting fictionalized explanations, I also find that the Defendant attempted the same fraudulent fictions on this court.

[65] The appellant submits that in assessing the third branch of W.(D.), the trial judge acknowledged weaknesses in the evidence of the complainant, saying that his evidence would “fail on any reliability assessment” standing alone.

[66] The judge’s reasons must be viewed as a whole. The evidence at trial was based substantially on a credibility assessment of the viva voce evidence of both the Crown’s witnesses as well as the witnesses called by the defence. This necessitated the trial judge undertaking a W.(D.) analysis, which he did.

[67] The trial judge first found that the appellant’s evidence was “completely discreditable” and he did not believe the appellant. He then went on to consider the second branch of the test. He found that the appellant’s testimony was constantly shifting and evasive, and it was not supported by any evidence presented at trial; as such, he was not left in a state of reasonable doubt by it. He finally went on to consider the third branch of the test and turned to other evidence to see what, if any, evidence he did accept. The trial judge considered the complainant’s testimony and found that it was weak and demonstrated a clear lack of attention to the operation and finances of the business. The trial judge further found that while the complainant’s evidence was credible for the most part, it was not reliable. The trial judge then looked at the totality of the evidence and concluded that there was credible and reliable corroboration to the complainant’s testimony in the cheques he paid to the appellant, the email correspondence between the two parties, and the independent witnesses who contradicted the appellant’s testimony with respect to the expenses he claimed were incurred.

[68] When the judge’s reasons are viewed contextually, it is clear that he correctly applied the W.(D.) analysis. I agree with the Crown’s submissions that as part of the analysis, the trial judge assessed and rejected the appellant’s evidence before separately assessing the evidence that the Crown was relying on. After rejecting the appellant’s evidence, the trial judge stated, “[w]hile I reject the defendant’s testimony, I am still left with the question of whether the Crown has proven its case beyond a reasonable doubt.” Only after this conclusion did the trial judge make the determination as to whether the Crown’s case was proven beyond a reasonable doubt. As such, I see no error in the trial judge’s treatment of the W.(D.) analysis.

[69] Accordingly, I would not give effect to this ground of appeal.

THE SENTENCE APPEAL

[70] The parties agree that the trial judge erred by finding that the appellant was responsible to pay back the total amount of the fraud of $378,491.60 and by ordering restitution in that amount. They agree that the correct amount of the restitution order should have been $189,245.80, representing half of the total fraud.

[71] The appellant further argues that a conditional sentence should have been imposed, rather than the 18-month custodial sentence he received. At the sentencing hearing, the parties had agreed that a conditional sentence was not available based on s. 742.1 (c) of the Criminal Code, R.S.C. 1985, c. C-46. They did not yet have the benefit of this court’s determination that s. 742.1 (c) is unconstitutional and of no force and effect: R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311.

[72] I agree that a conditional sentence was available but defer to the trial judge’s decision not to grant it. The trial judge explicitly considered this option and held that it would not sufficiently address the principles of deterrence and denunciation. In my view, the trial judge’s misapprehension of the amount of the fraud to be paid back did not impact the custodial sentence ordered in a manner that warrants appellate intervention: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44. The error in the restitution amount did not overshadow the trial judge’s analysis. He properly considered the appropriate sentencing range, the principles of deterrence and denunciation, and aggravating and mitigating factors.

[73] I would not give effect to this ground of appeal.

CONCLUSION

[74] The appeal from conviction is allowed on the basis of a s. 11(b) violation. I would stay the conviction for fraud over $5,000. The remaining grounds of appeal are dismissed.

Released: March 21, 2022 “M.T.” “M. Tulloch J.A.” “I agree. K. van Rensburg J.A.” “I agree. I.V.B. Nordheimer J.A.”