Court File and Parties
Court File No.: CR 13-70000473-0000 Date: 2017-04-20 Superior Court of Justice - Ontario
Re: R. v. Steven Venditello
Before: S. F. Dunphy, J.
Counsel: Elizabeth Moore, for the Crown John Christie, for the Defendant Applicant
Heard: April 13, 2017
Endorsement re: s. 11(b) Charter application
[1] I have before me an application pursuant to Section 11(b) of the Canadian Charter of Rights and Freedoms brought by the defendant Mr. Steven Venditello to stay fraud charges against him for failure to bring him to trial within a reasonable time.
[2] At first blush, the fact that Mr. Venditello has yet to be tried in more than seven years through more than 60 appearances might suggest that his application has some merit. Closer examination of the facts and a review of the transcript of each and every one of those appearances makes it quite clear that Mr. Venditello has exercised his considerable ingenuity to prevent the holding of his trial within a reasonable time. Indeed, he appears to be the very archetype of the defendant described in R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27, at para. 21:
“Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice.”
[3] From his initial court appearance on January 14, 2010, almost every one of the appearances that follow features requests by or on behalf of Mr. Venditello for more time for one reason or another, usually tied to counsel in the process of being hired, instructed or fired. Counsel is engaged, then not engaged; a retainer for new counsel is being finalized then old counsel re-appears and more time is needed to finalize that retainer; legal aid is being sought; legal aid counsel is fired on the verge of trial and private counsel without trial availability is hired and so on with further variations on the theme repeated over and over again.
[4] Mr. Venditello has proved himself a veritable virtuoso at exploiting the fervent desire of the justice system to facilitate his right to counsel to create delay for his own ends. In the interim, the main complainant has fallen ill and died. Even a peremptory “with or without counsel” trial date was not proof against the stratagems of this defendant who, thus far, has avoided trial with all the determination of a cat fleeing a bath.
[5] The court in Jordan sought to change a culture of complacency not gullibility. The latter may well need addressing as well, but only in an Alice in Wonderland world can the pursuit of justice be advanced by its denial. The Charter will not long stand as a publicly-cherished bulwark of fundamental rights and freedoms if it is permitted to be exploited and indeed perverted to secure ends utterly disconnected from those of justice.
[6] In this case the right to counsel has been skilfully manipulated to attempt to create a simulacrum of unreasonable delay. There is no doubt in my mind that this defendant has never sought to have his day in court. The administration of justice is not brought into disrepute by holding a trial notwithstanding the delay; it would be brought into disrepute by rewarding this calculated behaviour.
[7] This application is dismissed for the more detailed reasons that follow.
Background facts and procedural history
[8] Mr. Venditello was charged with fraud over $5,000 pursuant to s. 380(1)(a) of the Criminal Code. The allegations relate to the alleged defrauding of an elderly couple of approximately $340,000 between March and November, 2009.
Proceedings before the Ontario Court of Justice
[9] It appears that Mr. Venditello was arrested and released on a promise to appear on November 19, 2009. At all events, the information was sworn on January 12, 2010 and Mr. Venditello made his initial appearance in respect of the charge on January 14, 2010.
[10] Mr. Uppal appeared at that time on behalf of Mr. Venditello’s counsel Mr. Batasar pursuant to a designation filed with the court on that date. Mr. Uppal requested the matter be put over to February 11, 2010 to have further discussion with the client. As the Crown was still preparing disclosure, this was done on consent.
[11] There is no transcript of the February 11, 2010 appearance beyond the fact of the matter being held over until April 8, 2010. Later transcripts indicate that the Crown made disclosure on February 8 and February 11, 2010. From and after this date, the Crown was ready willing and able to have a pre-trial and schedule a preliminary inquiry to be held on the earliest possible date. That simple goal was frustrated for the next three years.
[12] I shall not attempt to detail each and every appearance between February 11, 2010 until May 10, 2012 when the date for the preliminary inquiry was finally set. Despite Mr. Venditello having counsel of record (Mr. Batasar), there was a year lost to Mr. Venditello’s repeated failures to appear in person or through counsel followed by an unexecuted bench warrant, more delays due to requests by other counsel or their agents (including Mr. Venditello’s current counsel, Mr. Christie) seeking instructions or attempting to finalize their retainers in replacement of Mr. Batasar, the re-appearance of an apparently un-retained Mr. Batasar, etc. Counsel was always in the process of being retained, but somehow Mr. Venditello never managed to accomplish this simple task without months of delay by which time a new (or old) counsel would appear instead. On other occasions, Mr. Venditello was in custody on other charges or juggling trial dates in those other matters. There was always something, but each delay was due to matters the defence had been unable to complete in time but assured the court could be completed with just one more delay. Attempts at conducting a judicial pre-trial in order to estimate the time necessary for the preliminary inquiry could not be accomplished. Lucy always managed to yank the football just before Charlie Brown could kick it, leaving Charlie Brown to keep hoping that next time would be different. Finally, on May 17, 2012, Marshall J. put an end to the maneuvering and fixed a preliminary inquiry date for March 15, 2013 making some very trenchant comments along the way about the foot-dragging of the defendant that had been tolerated until then.
[13] I have no hesitation in attributing 100% of the delay from February 11, 2010 when disclosure was provided until May 10, 2012 when the date for the preliminary inquiry was finally set to the defence. The Crown and court may well have been too easily persuaded to grant the defence one last chance (over and over) through this time frame, but the cause of the delay in each case was the defence.
[14] What then of the delay from May 10, 2012 when the preliminary inquiry date was set until March 15, 2013 when it was scheduled to be held?
[15] I am not prepared to attribute this delay entirely to the Crown even if the Crown appears willing to shoulder the burden in its submissions. If Jordan is to substitute an arbitrary and mechanical calculation of delay for the contextual Morin analysis until the magic threshold of 30 months is reached, then the evidentiary record is going to have to start being prepared with a lot more clarity to prevent s. 11(b) of the Charter from being manipulated or turned on its head.
[16] In this case, Mr Venditello requested preliminary inquiry dates in March or April of the following year using as his reason the requirements of the schedule of counsel he had not even retained (and, as it turned out, never did). Although he had parried attempts to set a date earlier by pleading on-going efforts to hire Mr. Christie as his lawyer, he now claimed that these dates were a requirement of Mr. Batasar. Mr. Batasar is of course the same lawyer who had been his on-again, off-again lawyer for the prior two years of frustrated attempts to set dates and move forward. As noted, he was not in fact hired. How genuine the attempts to retain Mr. Batasar were at that time I cannot say, but a Scottish proverb about “fool me once” comes to mind.
[17] There is no record before me of when the first available preliminary inquiry date actually was. It might be salutary to place on the record at each appearance in the post-Jordan world the first available date offered to the defence for a step in the proceedings even if defence counsel is unable to accept it due to conflicting commitments. If Jordan requires the Crown and the administration of justice generally to be made accountable for delay based on a mechanical formula, this cannot logically extend to that portion of delay that is solely attributable to accommodating the calendar of defence counsel. Such advice is of course hard to apply retroactively – Jordan was not handed down until after almost all of the delay under consideration in this case had already occurred. Given that the March 15, 2013 preliminary inquiry was able to be rescheduled and heard in less than 60 days when circumstances (described below) required it, I have no doubt that dates well before March 2013 were available in May 2012.
[18] In light of the evidence before me of Mr. Venditello having requested the long delay before his preliminary inquiry and the speed with which a new date was able to be arranged when this proved necessary, I find that no more than 120 days of the time between May 10, 2012 until March 15, 2013 can be charged to institutional or prosecution delay. I find that the rest of the time was solely a result of accommodating the request of the defence.
[19] The revolving door of Mr. Venditello’s legal representation had not ceased to revolve. Indeed, from the very start of the case in January 2010 and early February, 2013, some combination of Mr. Batasar or Mr. Christie were either retained or in the process of being retained at various status hearings convened. Sometimes Mr. Venditello appeared in person to ask for more time to finalize arrangements, sometimes agents for one or the other of Mr. Christie or Mr. Batasar appeared to make the same request. Mr. Christie appeared on a limited purpose retainer to speak to release conditions, Mr. Batasar’s office appeared under a designation and then somehow simply stopped appearing. Legal Aid does not appear to have entered into the equation, at least not during this phase.
[20] On January 31, 2013, Mr. Venditello appeared at a case management conference and advised the court that he was about to obtain a legal aid certificate and that his lawyer would be Mr. Tyler Smith of the firm Hicks, Adams LLP. A week later, Mr. Venditello appeared accompanied by a student from Mr. Smith’s law firm of Hicks, Adams LLP. The student represented that a legal aid certificate had been issued the prior day and that the firm would be ready to proceed with the preliminary inquiry on March 15, 2013. At some point between February 2013 and March 2013 Mr. LaBar, then of that firm, appears to have become the responsible lawyer in lieu of Mr. Smith.
[21] Unfortunately, the preliminary inquiry set for March 15, 2013 did not proceed due to the fact that the main complainant, having been diagnosed with what proved to be a terminal illness, was too ill to attend. That fact was only learned the day prior.
[22] The preliminary inquiry was ultimately able to be rescheduled for May 15-17, 2013 (this despite various defence requests for adjournments). The defence conceded committal soon after the hearing began and the matter was put over to assignment court in Superior Court to set a jury trial date. While the next assignment court would have been June 19, 2013, the defence asked for a further month of delay (this was granted).
[23] I would attribute the time from March 15, 2013 until May 16, 2013 as extraordinary delay due to unforeseen circumstances (the sudden illness of the main complainant). The time from June 19, 2013 until the assignment court on July 16, 2013 is attributable to delay to accommodate the defence.
Superior Court proceedings
[24] Mr. LaBar failed to show up for the July 16, 2013 assignment court by reason of an error on his part. The matter was put over for two weeks to set a judicial pre-trial. The parties returned on July 31, 2013 and a judicial pre-trial was set for September 16, 2013. The delay from July 16 until July 31, 2013 is also solely attributable to the defence.
[25] On September 16, 2013, a pre-trial was conducted that date, but when the parties appeared to set a trial date, the Defence asked for a month delay “to seek instructions” from the accused. This was granted.
[26] From September 16, 2013 until December 10, 2013, the parties were in court five times for the purpose of setting a trial date. The first four occasions resulted in adjournments as the defence sought an additional pre-trial or time to seek instructions on possible settlement proposals that did not proceed. On December 10, 2013, a trial date of November 24, 2014 for a five to seven day jury trial was finally set. I have no indication that earlier dates were available and turned down to accommodate the calendar of the defence and the delay appears consistent with “normal” delay times for a short jury trial in Superior Court at that time.
[27] I find that the delay from September 16, 2013 until December 10, 2013 is solely attributable to defence delay.
[28] Although the parties appeared to confirm trial readiness on September 8, 2014, the matter did not proceed as scheduled on November 24, 2014. Instead, on October 31, 2014 Mr. LaBar brought an application to be removed as solicitor of record for the reason that he had taken a new job in British Columbia and was moving in mid-November. There is no evidence before me as to whether Mr. Venditello sought to retain the firm of Hicks Adams LLP on the record and use other counsel from that firm (he had originally retained Mr. Smith of that firm according to the court transcripts).
[29] The application to remove counsel of record for the defence was not opposed by the Crown but it was certainly not on consent - a fact that is apparent from the transcript of the hearing.
[30] Mr. Venditello was not present in court at the time of the hearing of this application on October 31, 2014. However, Mr. LaBar, his counsel, made specific representations to the court on his behalf. Mr. LaBar confirmed that he had communicated the change to Mr. Venditello and the reasons for it in sufficient time for Mr Venditello:
a. to have contacted Mr. Batasar to represent him (yes, the same Mr. Batasar who seemed to appear and disappear from the file like the Scarlet Pimpernel between 2010 and 2013); b. to have contacted Legal Aid about the change of lawyers; and c. to have been advised by Legal Aid that the change would take “maybe about two weeks” to process.
[31] Mr. LaBar did not expressly state that his application to be removed was with Mr. Venditello’s consent to be sure. However, the representations made about all of the actions Mr. Venditello was taking to minimize the delay and retain new counsel certainly left that inference to be made quite naturally and it appears from the record that McComb J. so understood it. There was at all events no hint that Mr Venditello opposed the change of counsel in any way. His apparent diligence in dealing with the consequences suggested anything but.
[32] The application was granted and the trial date was converted to a set-date hearing for what was held out as a very brief delay. It was not.
[33] The defence suggests that the delay attributable to the loss of this first trial date should be attributed to the Crown on the theory that the Crown or the Court ought to have opposed the application. I disagree.
[34] Firstly, it is not at all clear that there was a reasonable basis to refuse the application itself: R. v. Cunningham, [2010] 1 SCR 331, 2010 SCC 10, at paras. 50, 54. While Cunningham dealt with a case of withdrawal for failure to pay legal fees, the court suggests that a very high threshold must be met before refusing a lawyer’s legitimate request to be released from the obligation to represent a client for whom he or she has gone on the record.
[35] Secondly, it is not at all clear that Mr. Venditello was prevented from proceeding with the trial on the scheduled date. He appears to have had approximately one month’s notice to arrange for new counsel. It was Mr. Venditello whose intended counsel of choice allegedly had a calendar unable to accommodate that schedule. As noted, I have no record of whether Hicks Adams LLP could have provided him with counsel or was even asked to do so. There is no reason for me to assume that another competent counsel could not have been found able to assume carriage of a relatively short trial with a month’s notice. The decision to vacate the trial date was an accommodation to the represented conflict in the schedule of Mr. Venditello’s un-retained counsel (Mr. Batasar in this instance).
[36] I can safely conclude in this case that had the application to remove counsel been presented as one opposed by the accused or as one that would potentially have left the defence without access to Legal Aid or counsel for months on end, there is no reason to believe that it would have been granted. A very different picture was presented on October 31, 2013. Only a short delay was expected and it was on that basis that the application was approved.
[37] On November 24, 2014, Mr. Venditello appeared in person without Mr. Batasar. He advised the court that Legal Aid would need a further two to three weeks to issue a new certificate and that his new would not give him any dates until he had the certificate in hand. No objection of any kind was expressed about the departure of Mr. LaBar by Mr. Venditello at that time. The matter was put over to be spoken to on December 17, 2013.
[38] On December 17, 2014, a further delay was sought and obtained by Mr. Venditello on the strength of a letter from his still-intended lawyer, Mr. Batasar. On January 27, 2015 Mr. Venditello appeared in person again and claimed that his legal aid certificate was in transit but that his lawyer, Mr. Batasar would not agree to go on the record until he had it. The matter was put over to February 9, 2015. On that date, an entirely different lawyer not previously mentioned, Ms. Denisov, went on the record instead of Mr. Batasar. A judicial pre-trial was set for March 19, 2015.
[39] Following the judicial pretrial before Speyer J., the parties appeared before Ducharme J. later that same day. A five day jury trial date was set for January 25, 2016. At that time, counsel advised that the defence was contemplating re-electing to proceed without a jury. The matter was put over to be spoken to on March 25, 2015, but the jury trial date fixed was left intact.
[40] On March 25, 2015, Mr. Venditello’s counsel appeared by designation before Speyer J. It appears that Mr. Venditello was present in court (he admitted this on the record at a later hearing on January 7, 2016). His lawyer advised the court that the matter “was put over to today to finalize the instructions on a re-election” and that “those instructions have been obtained” and the re-election form had been signed and provided to the clerk. The same trial date – January 25, 2016 was retained. It is to be recalled that the judicial pre-trial on March 19, 2015 had been before Speyer J.
[41] At the hearing of this motion, Mr. Christie took issue with the failure of the parties to follow strictly the procedure for re-electing outlined in s. 561(7) of the Criminal Code when Mr. Venditello’s re-election to judge alone was processed on March 25, 2015.
[42] Section 561 of the Criminal Code permits the accused in certain circumstances to re-elect from trial by judge and jury to trial by judge alone with the consent of the prosecution. The procedure for doing so described in subsection (7) requires the accused to be present in court and have specific words or words to like effect read to him.
[43] I am unable to give effect to Mr. Christie’s submissions in this regard.
[44] Firstly, it appears that the first hint of an objection to the procedure followed was not expressed until January 7, 2016 and if an application has been filed to deal with the objection, it has yet to be set down for a hearing. Secondly, given the decision of the Supreme Court of Canada in Korponay v. Attorney General of Canada, [1982] 1 SCR 41 and the considerable delay since January, 2016 in taking concrete steps to deal with the matter, the argument appears to face a steep uphill climb if pursued. While Mr. Christie suggested that the re-election was processed without Mr. Venditello’s consent or knowledge, there is no evidence to support that contention and what evidence there is on the record is to the opposite effect (including Mr. Venditello’s admitted presence in court on March 25, 2015 and the failure to mention this allegation earlier). Thirdly, there is nothing before me to suggest that any delay at all was attributed to the re-election. The January 25, 2016 trial date was obtained when the matter was still considered to be a jury trial. The trial date was ultimately lost due to the decision of the defendant – again – to change counsel (discussed below). The loss of that second trial date had nothing to do with the re-election question.
[45] On the record before me, not a single day of delay can be attributed to this issue.
[46] Needless to say, the January 25, 2016 trial date did not proceed either. On December 16, 2015, Ms. Denisov appeared before Nordheimer J. to speak to trial readiness. She said that she had been unsuccessful in locating Mr. Venditello for more than a month and asked for a further trial readiness date in early January. Instead, the court set a return date for December 23, 2015. She had no better success in locating him the following week. The matter was again put over – this time until January 7, 2016.
[47] On the January 7, 2016 hearing, Ms. Denisov’s office was present in court as was Mr. Venditello and a lawyer (Mr. Burt) on behalf of the not-yet-retained Mr. Christie. This is not the first time Mr. Christie or his agents had appeared in court for Mr. Venditello while “finalizing” a retainer. By way of spoiler alert, Mr. Christie will not be retained this time either. Mr. Venditello made it clear at the hearing that he was dispensing with the services of Ms. Denisov. Ms. Denisov was removed as counsel of record at the conclusion of the hearing and an application to adjourn the trial was fixed for January 15, 2016.
[48] On January 15, 2016 the trial was adjourned on a peremptory basis, with or without counsel, to December 12, 2016 for five days judge alone. No mention was made at that hearing of a request to withdraw the re-election. Mr. Burt for a yet-to-be-retained Mr. Christie was again present with a limited mandate only. Trial readiness was set for September 14, 2016.
[49] At the trial readiness hearing on September 14, 2016, Mr. Venditello appeared in person but 90 minutes late. He brought a letter from …Mr. Batasar (again). Mr. Christie appeared to have dropped off the stage. Not for long. Mr. Venditello advised the court that he was “trying to retain” Mr. Batasar. He was reminded that the trial date of December 12 was peremptory, but given until September 23 to appear in trial readiness court.
[50] On September 23, 2016 Mr. Batasar appeared to be back on the back burner and Mr. Christie was back in the saddle. Mr. Alexander, representing Mr. Christie’s office appeared this time. Mr. Alexander represented that Mr. Christie had now been privately retained. The legal Aid certificate what had held matters up in 2014 and early 2015 was no longer an issue. However, Mr. Alexander said that Mr. Christie would not be able to conduct the trial as scheduled on December 12, 2016.
[51] By way of parentheses – that peremptory trial date had originally been set on a with or without counsel basis at a time when Mr. Venditello was ostensibly in the process of retaining the same Mr. Christie.
[52] Be that as it may and over the rather exasperated objections of the Crown, the December 12, 2016 court date was vacated and a further judicial pre-trial was requested and scheduled for November 1, 2016.
[53] I will not pursue the chronology further. There can be no argument that the delay after the vacated peremptory trial date of December 12, 2016 is solely attributable to the defence. The matter is now set for a non-jury trial on July 24, 2017.
Analysis
[54] The Crown suggests and I agree that the correct framework for applying Jordan and analyzing the delay in this case is set forth in R. v. Coulter, 2016 ONCA 704. By way of high level (and simplified) summary, this framework requires me first to determine the “raw delay” (total time to anticipated trial end), subtracting from this the “defence delay” to arrive at “net delay”. If net delay exceeds the 30 month Jordan threshold, the Crown bears the burden of establishing exceptional circumstances justifying the delay. Should these be established, the delay attributed to the exceptional circumstances is deducted from net delay to arrive at “remaining delay”. If the remaining delay is under the 30 month threshold, the defence bears the onus of establishing the delay is nevertheless unreasonable by reason of, for example, the defence’s efforts to secure an early trial.
[55] Following the Coulter framework, I begin by considering the raw delay. In this case, the raw delay from January 14, 2010 when Mr. Venditello first appeared in court until July 28, 2007 when his trial is scheduled to conclude. The total elapsed time is just over 90 months (30.4 days being an average month) or 2,752 days.
[56] Next I must subtract defence delay.
[57] The Crown includes the following time frames in its calculation of defence delay:
a. May 20, 2010 until preliminary inquiry scheduled on May 10, 2012 (721 days); b. June 19, 2013 until July 30, 2013 to account for defence requested delay in first Superior Court assignment court plus counsel’s initial failure to appear (41 days); c. September 16, 2013 until December 10, 2013 to account for defence delay in being ready to set the first trial date (85 days); and d. November 24, 2014 until the completion of the fourth scheduled trial (July 28, 2014) to account for trial dates lost to defence actions (973 days).
[58] The Crown has been more generous to the defence than I in calculating defence delay. I have stated my reasons for disagreeing with two elements of this calculation above.
[59] The Crown starts counting defence delay on May 20, 2010. As I have stated above, the evidence is that the Crown had completed disclosure and was ready to move forward on February 11, 2010 but the defence was not. The Crown also attributes none of the delay between May 10, 2012 and March 15, 2013 to the defence. I have found that a preliminary inquiry could have been held within four months (120 days) from May 10, 2012. The remainder of that period of delay is attributed to the defence. Subject to those two alterations, the Crown’s analysis of the delay is accurate and accepted by me for the reasons expressed above.
[60] The Crown calculated a defence delay of 1821 days. I would therefore increase that (i) by 98 days to cover the time frame from February 11, 2010 when disclosure was complete until May 20, 2010; and (ii) by 189 days to account for the preliminary inquiry having been set as late as March 15, 2013 at the request of the defence.
[61] The “net delay” so calculated is thus 647 days or about 21.25 months. That figure is well below the 30 month Jordan threshold and shifts the onus to the defence to establish that the delay is nevertheless unreasonable.
[62] Were it necessary to calculate “remaining delay” (and it is not), I would deduct a further two months from the net delay to account for the extraordinary circumstance of the Crown’s principal witness and complainant on the preliminary inquiry having fallen gravely ill on the very eve of the hearing. This was an obviously unforeseen and unforeseeable event. The period from March 15, 2013 until the committal on May 17, 2013 would be deducted from net delay to calculate remaining delay.
[63] Given these calculations, I have not found it necessary to address the arguments advanced by the defence concerning the starting point of the calculation (i.e. whether to start calculating raw delay from the date of arrest and release on promise to appear, the date of the swearing of the information or that of the first court appearance). It would make no material difference in any event.
[64] I have found that the time to trial completion remains well below the Jordan 30 month threshold whether using the “net delay” or “remaining delay” calculations from Coulter. The defence has not provided me with any convincing evidence to suggest that the delay is nevertheless unreasonable. The defence has taken no steps to expedite this matter. Mr. Heath, acting with unconfirmed authority on a single occasion thought to take a position on setting a hearing with or without counsel. Needless to say, that position was not repeated. The defence in this case has been an enthusiastic agent of stasis. The defence has not satisfied the burden of establishing that the net delay or remaining delay was unreasonable in the circumstances.
Disposition
[65] I find that there has been no violation of the accused’s right to trial within a reasonable time. This application is accordingly dismissed.
S. F. Dunphy, J. Date: April 20, 2017