Court File and Parties
COURT FILE NO.: CR-371/17 DATE: 2020 07 03 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Ikdeep Singh, for the Crown
- and -
ROSLYN BLAKE Nakita Kelsey, for Roslyn Blake
Heard: September 17 and 18, 2019
Reasons for Decision
Dismissal of Crown’s Application for Summary Dismissal of Ms. Blake’s Application for Stay of Proceedings
Kumaranayake J.
[1] On September 17 and 18, 2019, I heard the Crown’s Application for summary dismissal of the ss. 7 and 11(d) Application which had been brought by Ms. Blake. On September 18, 2019, I dismissed the Crown’s Application, with reasons to follow. These are those reasons.
[2] I shall refer to the ss. 7 and 11(d) Application brought by Ms. Blake as ‘Ms. Blake’s Application.’ I shall refer to the Crown’s Application to summarily dismiss Ms. Blake’s Application as the ‘Crown’s Application.’
Brief Background
[3] Ms. Blake and her co-accused, Ms. Graham, were charged with fraud over $5,000. It was alleged that Ms. Graham and Ms. Blake perpetrated a complex fraud and misappropriated over $2 million from the trust account of Charles Ocran, a lawyer who practiced real estate. Ms. Graham operated her own business as a law clerk. She worked exclusively for Mr. Ocran, although she was not his employee. It was alleged that through a series of cheques, money flowed from Mr. Ocran’s trust account into a holding company owned by Ms. Blake. Then, it was alleged that the money was used to finance Rozz Entertainment, a banquet hall/nightclub. Ms. Blake and Ms. Graham were both directors of Rozz Entertainment.
[4] By her Notice of Application, dated and filed on May 22, 2019, Ms. Blake requested a stay of proceedings on the basis that her rights under ss. 7, 11(b) and 11(d) of the Canadian Charter of Rights and Freedoms (“the Charter”) were breached. An Application Record, factum and book of authorities were also filed on May 22, 2019 and a Supplementary Application Record was filed on June 5, 2019.
[5] Ms. Blake’s Application was heard by Harris J. on June 13, and 14, 2019. The Crown had filed its Responding Record, factum and book of authorities to address all issues raised in Ms. Blake’s Application. Harris J. dismissed the portion of Ms. Blake’s Application that related to her claim of a breach of her s. 11(b) rights and held that the issue of the claimed breach of Ms. Blake’s ss. 7 and 11(d) Charter rights be heard by the trial judge, see R v. Blake, 2019 ONSC 4837, at para. 16.
[6] Jury selection started on July 30, 2019 and was completed on August 2, 2019. The trial was scheduled to be heard the weeks of August 6, 12, 19 and then continue the week of September 9, 2019. It was estimated by counsel that the trial would take three to four weeks.
[7] During jury selection, Ms. Kelsey properly brought to my attention that the scheduling of argument of Ms. Blake’s Application would need to be addressed. The issue of scheduling Ms. Blake’s Application was addressed on numerous occasions throughout the trial. Ms. Kesley’s initial position was that Ms. Blake’s Application should be heard after the evidence was completed. However, her position subsequently changed, and she submitted that Ms. Blake’s Application should be heard after the jury rendered a verdict, if that verdict was guilty. Ms. Kelsey went back and forth between these two stances. Ultimately, I directed that all counsel review R. v. Henderson, 2004 191 O.A.C. 201 (Ont. C.A.), in which the Court of Appeal for Ontario held that requests for a stay of proceedings based on abuse of process or a s. 7 breach must be heard prior to the jury rendering a verdict. As set out in paras. 42 and 46:
[42] After the jury had found the respondent guilty on all counts, after the verdict had been registered and after the jury had been discharged, it was an error for the trial judge to conclude that he had the jurisdiction to entertain a motion for a stay as a remedy for abuse of process or a breach of s. 7 of the Charter, based on the Crown’s failure to preserve and disclose the respondent’s employment records. …
[46] However, what is clear is that such motions must be brought at a point when the trial judge is in a position to deal with the matter with the jury, and if a stay is not appropriate, to give a remedy during the trial. Counsel cannot save such motions to be brought only if the accused is convicted. Once the jury has delivered its verdict, matters that involve the conduct of the trial and that could have affected the jury’s verdict can only be raised on appeal. [emphasis added]
[8] Ms. Kelsey’s final position was that, if Ms. Blake’s Application was to proceed (because it was not clear that it would), it should be argued after the evidence was completed but before the jury started its deliberations. Counsel for the Crown agreed with Ms. Kelsey’s final position.
[9] When the trial resumed the week of September 9, 2019, Ms. Blake’s Application had not been scheduled for argument because counsel was falling behind on their anticipated schedule for the evidence. There was a variety of reasons for this, but it is unnecessary to include those reasons here.
[10] The scheduling of argument of Ms. Blake’s Application was further impacted by several developments. As I have outlined in R. v. Graham, 2020 ONSC 3901, between September 11 and September 16, 2019, two jurors were discharged; inquiries of the remaining 10 jurors were held; and there was a joint defence request for the discharge of two other jurors as well as a joint defence request for a mistrial.
[11] Further, on September 12, 2019, Ms. Kelsey indicated that she wished to file a revised factum for Ms. Blake’s Application.
[12] On September 13, 2019, Mr. Singh advised the court that the Crown was objecting to Ms. Kelsey filing a revised factum and a new book of authorities. He requested that Ms. Blake’s Application be summarily dismissed for non-compliance with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I. 2012-7 (“CPR”).
[13] These unexpected events impacted the anticipated schedule for the completion of evidence. It also impacted the scheduling of argument for the Crown’s Application, as well as Ms. Blake’s Application if the Crown’s Application was not successful.
Parties’ Positions
The Crown
[14] On behalf of the Crown, Mr. Singh submitted that the Crown had already responded to the original factum and book of authorities which Ms. Kelsey had filed in May 22, 2019. Mr. Singh submitted that the Crown would be prejudiced if Ms. Kelsey was permitted to rely on her revised factum and new book of authorities because she had not complied with r. 32.01 of CPR, which stated that books of authorities shall be served and filed 30 days prior to the hearing.
[15] Mr. Singh made several arguments in support of his position. First, he pointed out that the relevant portion of Ms. Kelsey’s original factum addressed the ss. 7 and 11(d) issues in four pages and that there were three relevant cases listed in her book of authorities. The remaining portions of Ms. Kelsey’s original factum and book of authorities addressed the s. 11(b) issue that was heard by Harris J.
[16] By contrast, Mr. Singh submitted that the revised factum (which only addressed the ss. 7 and 11(d) issues) was eight pages long, included references to 10 new cases, some of which had not been included in the new book of authorities. Mr. Singh pointed out that some of those cases were quite lengthy (one was 300 paragraphs and another was 190 paragraphs).
[17] His second argument was that Ms. Kelsey had changed the nature of the evidence to be relied upon for Ms. Blake’s Application. The Notice of Application indicated that only Ms. Blake’s affidavit would be relied upon. But from his review of the revised factum, Ms. Kelsey also wanted to call Officer Cuoco and it fell to Mr. Singh, on very short notice, to facilitate making the arrangements for Officer Cuoco’s attendance.
[18] Mr. Singh’s third argument was that Ms. Kelsey had expanded her argument through her revised factum. He submitted that the original factum essentially set out a straight-forward argument: Ms. Blake alleged that she was unable to retrieve text messages (which would support her defence) because of the delay in charging her. The Crown had responded to that argument and he was ready to proceed on that basis.
[19] Mr. Singh argued that the revised factum expanded Ms. Kelsey’s argument to include a claim that pre-charge delay resulted in the loss of two pieces of evidence. The first was documentation that Ms. Blake kept at 200 Advance Blvd., Brampton (where Rozz Entertainment was located). This documentation included evidence that would have supported her defence that Rozz Entertainment was financed through private investor loans. The second piece of lost evidence was the November 2010 statement that Mr. Ocran gave to the police.
[20] Mr. Singh argued that as a result of the expansion of argument, he would require additional time to review all of the new cases that Ms. Kelsey now wanted to rely on; consider what additional material he would need to file; prepare his cross-examination of Ms. Blake and presumably, Officer Cuoco; determine if the Crown also needed to call any witnesses; and prepare a revised factum and book of authorities on behalf of the Crown.
[21] Mr. Singh also argued that, during the two-week hiatus when the trial was not sitting, Ms. Kelsey had time to conduct additional research and prepare her revised factum. He expressed concern that he would not have two weeks to do the same, so he would be unable to properly respond or adequately prepare a revised factum.
Ms. Blake
[22] Ms. Kelsey submitted that the revised factum was only one page longer than the applicable portions of her original factum.
[23] She also submitted that her original factum included reference to the lost statement of Mr. Ocran, and it was an undisputed fact that the statement was lost.
[24] With respect to the documentation at 200 Advance Blvd., Ms. Kelsey submitted that the significance of the loss of this evidence was highlighted as evidence unfolded during this trial. She submitted that counsel must be prepared to adapt as evidence emerges.
[25] She submitted that, instead of providing a revised factum, she could have relied on the original factum and simply referred to the loss of the documentation in argument. She was of the view, however, that it was preferable to have a revised and streamlined factum.
[26] She acknowledged that it was her error that not all of the cases referred to in her revised factum had been included in her new book of authorities.
[27] She also acknowledged that Mr. Singh should be given the opportunity to prepare further materials.
Ms. Graham
[28] While Mr. Doyle, counsel for Ms. Graham did not participate in argument on the merits of the Crown’s Application, he was permitted to comment on the timeline that Ms. Kelsey and Mr. Singh were proposing, in the event that the Crown’s Application was not granted.
[29] The timeline proposed by Ms. Kelsey and Mr. Singh provided that Mr. Singh would have September 19 and 20, 2019, to devote to preparing his response. He would serve Ms. Kelsey with his revised factum by 5 p.m. on Sunday, September 22, 2019, and file it with the Court on September 23, 2019. Ms. Blake’s Application would be heard on September 23, 2019.
[30] According to their proposed timeline, on September 25, 2019, I would deliver my ruling on Ms. Blake’s Application and the pre-charge conference would also be held that day. Final submissions would be given on September 26, 2019, followed by my final instructions to the jury.
[31] Mr. Doyle submitted that Ms. Blake’s Application should be heard on September 20, 2019, with Mr. Singh submitting his factum the morning of September 20, 2019. Mr. Doyle submitted that Mr. Singh had already had Ms. Kelsey’s revised factum for six days.
Discussion
[32] I was not prepared to summarily dismiss Ms. Blake’s Application. I was not satisfied that Ms. Blake’s Application had no merit or no chance of success.
[33] The issues to be determined, therefore, were when Ms. Blake’s Application would be heard; and whether Ms. Kelsey should be permitted to rely upon her revised factum and new book of authorities and to call Officer Cuoco; or, be restricted to relying on her original factum, book of authorities and Application Record. If Ms. Kelsey was permitted to rely upon the revised factum and new book of authorities and to call Officer Cuoco, then how much time should reasonably be given to Mr. Singh to prepare the Crown’s response?
[34] Mr. Singh relied on the following three rules of the CPR: 31.05(1)(d), 32.01(1), and 34.03:
31.05 (1) In addition to any other materials that may be required by these rules or by order of a judge of the court, an applicant under this rule shall include in an application record:
(a) the notice of application in Form 1;
(b) a copy of the indictment to which the application relates;
(c) legible copies of any reproducible materials relied upon in support of the application where it is proposed to argue the case for exclusion in whole or in part on a basis other than the testimony of witnesses;
(d) where it is proposed to argue the case for exclusion in whole or in part on the basis of testimony of witnesses, legible copies of prior statements or statements of anticipated evidence in sufficient detail to show the essential features of the evidence proposed for admission; and,
(e) any other materials that may reasonably assist the judge in identifying and determining the admissibility issues raised
32.01 (1) Books of authorities shall be served and filed by the applicant not later than thirty (30) days before the day first scheduled for the hearing of pre-trial applications or trial, as the case may be, unless otherwise ordered by a judge of the court under these rules.
34.03 Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:
(a) the nature of the applicant’s non-compliance with these rules;
(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;
(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;
(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;
(e) the history of the pre-trial applications and the proceedings;
(f) any notice given to other parties about the issues raised in the pre-trial applications;
(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;
(h) any prejudice to any other party in the proceeding;
(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;
(j) any explanation advanced for failure to comply with these rules; and,
(k) any other factors the judge considers relevant to his or her determination.
[35] Ms. Kelsey relied on CPR rr. 1.04(1) and 2.01:
1.04 (1) These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
2.01 A judge of the court may only dispense with compliance with any rule where and to the extent it is necessary in the interests of justice to do so.
[36] Mr. Singh also relied on R. v. Williams, 2013 ONSC 1173 and R. v. Djevdet, [1998] O.J. No. 3983 (Ont. C.J. Gen. Div.). However, those cases can be distinguished. In those cases, there was a delay in bringing the application. Here, however, Ms. Blake’s Application was filed in May 2019.
[37] I agreed with Ms. Kelsey that r. 31.05(1)(d) was not applicable as Ms. Blake was not seeking to exclude evidence.
[38] I agreed with Mr. Singh that Ms. Kelsey should have provided her revised factum much earlier than she did. Ms. Kelsey should also have given Mr. Singh and the Court much more notice that it was now her intention to call Officer Cuoco as a witness.
[39] I must, however, balance Ms. Blake’s right to have her Application heard relying on the arguments and law that her counsel deemed to be appropriate and necessary with the Crown’s right to have time to adequately respond to the revised factum and new book of authorities.
[40] I did not accept Mr. Doyle’s submission that Ms. Blakes’ Application should be argued on September 20, 2019 and that Mr. Singh should be required to deliver a revised factum the morning of September 20, 2019. While it was correct that Mr. Singh was provided with Ms. Kelsey’s revised factum on September 12, 2019, I accepted that he had been unable to turn his mind to the Crown’s response given the events outlined above at para. 10.
[41] Mr. Singh was in a difficult situation and was required to proceed with all due diligence. While I am sympathetic to his plight, in my view and in taking into consideration all of the circumstances of this case, it was not in the interests of justice that Ms. Kelsey be limited to her original factum for argument of Ms. Blake’s Application. I was also of the view that it fell to Ms. Kelsey to make the necessary arrangements for Officer Cuoco to attend to give evidence in her client’s application.
[42] On September 17, 2019, Mr. Singh indicated that he would need at least two days where he was not in court in order to properly review Ms. Kelsey’s new materials and prepare the Crown’s response.
[43] I had previously determined that no evidence would be called on September 19, 2019, as one juror had a commitment that day. Further, the last witness in this trial would complete his evidence on September 20, 2019, and a full day would not be required to complete his evidence.
Conclusion
[44] Therefore, keeping in mind that the CPR shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay, I directed that:
a) Ms. Blake’s Application would be argued on September 23, 2019.
b) Mr. Singh was not required to file a further factum but could do so if he wished.
c) If Mr. Singh decided to rely on a revised factum, then he had to provide his revised factum to Ms. Kelsey and the Court by email no later than Sunday September 22, 2019 at 9:30 a.m. (this deadline could be revisited at the conclusion of the last witness’s evidence, if necessary).
d) If Ms. Kelsey wished to call Officer Cuoco to give evidence in Ms. Blake’s Application, then it was up to Ms. Kelsey to make the necessary arrangements to secure his attendance.
[45] In my view, the above timeline was fair to all parties and minimized any further delay in the continuation of this jury trial, which was about to start its sixth week.
Kumaranayake J. Released: July 3, 2020