DATE: 20051223
DOCKET: C39380
COURT OF APPEAL FOR ONTARIO
MOLDAVER, ARMSTRONG and MacFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN Respondent
- and -
MELVIN DEUTSCH Appellant
Counsel: Melvin Deutsch, In Person Eliott Behar, for the respondent
Heard: September 21, 2005
On appeal from the conviction imposed by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, dated November 4, 2002, and the sentence imposed on January 17, 2003.
MOLDAVER J.A.:
[1] The appellant Melvin Deutsch was tried by the Honourable Justice McWatt and a jury on one count of fraud over $5,000 and one count of possession over $5,000. On November 4, 2002, the jury found the appellant guilty on both counts. The trial judge stayed the possession count and sentenced the appellant to four years in the penitentiary on the fraud count. The appellant appeals from conviction and sentence.
[2] The appellant represented himself at trial and on appeal. He did, however, retain counsel for a period of time during the appeal process. While retained, counsel filed a factum which raised several grounds of appeal. The lead ground concerned the appellant’s right to have his trial conducted in the French language; the remaining grounds related to alleged errors in the trial judge’s charge to the jury and to the fitness of the sentence imposed. In addition to those grounds, the appellant raised a medley of other issues in oral argument.
[3] At the outset of the appeal, the appellant commenced his submissions in the French language. He was told that the panel was not bilingual and he immediately switched to the English language. At that point, the appellant was told that we would adjourn the appeal if he wished to have it heard by a bilingual panel. The appellant declined the offer.
[4] The appellant then made mention of another proceeding in which he was representing himself before Rivard J. in the French language. He urged us to consider that proceeding in support of his contention that the trial judge in the instant case had wrongly disentitled him to a trial in the French language. The appellant was advised that the proceeding in question did not form part of the record on appeal. He was afforded the opportunity to adjourn the appeal if he wished to obtain the relevant transcripts. Once again, he declined the offer.
BACKGROUND FACTS
The Case for the Crown
[5] The Crown’s case against the appellant was extremely strong, if not overwhelming.
[6] On the pretext that he was acting as a middleman for a Saudi Arabian company known as OPEC Petroleum (“OPEC”), the appellant enticed Warren Distribution (“Warren”), an American company located in Nebraska, to ship 2,520 cases of hand soap to the appellant at his business address in Toronto. The price of the soap was approximately $84,000 Canadian.
[7] Based on the appellant’s representations, Warren believed that the soap was going to be shipped to Saudi Arabia where it would be sold. That representation was central to the transaction. The soap was not to be sold in Canada as Warren already had an exclusive Canadian distributor. The appellant assured Warren that the soap he was purchasing was destined for Saudi Arabia.
[8] That however, is not what occurred. On the undisputed evidence, the appellant sold most of the soap to a company in Toronto. A representative of that company, who had no prior association with the appellant, testified that in his negotiations with appellant, the appellant told him that the soap was originally destined for Russia but because the value of the ruble had declined, he and his partners had decided to liquidate it in Canada. The representative also indicated that his company had paid for the soap with a certified cheque. That cheque was found at the appellant’s business premises.
[9] In his negotiations with Warren, the appellant also agreed to pay for the soap upon delivery. Once again, on the undisputed evidence, he did not do so. From mid-November 1998, when he received the soap, until late December 1998 when he was arrested, the appellant paid nothing to Warren. During that time frame, however, he kept assuring Warren that the funds were on their way and he provided one false excuse after another to explain the delay.
[10] By way of illustration, he provided the names of two fictitious off-shore banks in Monseratt as the source of the funds and he went on at great length about the complexities involved in transferring funds from Monseratt to Canada and then to the United States. On one occasion, he falsely told Warren that one of the banks had put the cheque in the mail. Many of his falsehoods were captured on tape by a representative of Warren who mistrusted the appellant and wanted a record of their conversations.
[11] Equally damning evidence was given by the appellant’s former business associate. He swore that the appellant never had any intention of paying for the hand soap, nor did he intend to ship it to Saudi Arabia. Rather, he explained that the appellant was running a scam operation which essentially involved obtaining “merchandise or product on false credit.” To carry out the scheme, the appellant installed numerous phone lines at his business premises as a means of deceiving companies who chose to do credit checks. This dovetailed with the evidence of Warren’s representative who claimed that on several occasions, when she called a number which the appellant had told her belonged to one of his off-shore banks, the appellant answered the phone. This happened on a number of occasions and several of the calls were tape recorded.
[12] The former associate also testified that OPEC was not a Saudi Arabian company and the appellant was not its agent. Rather, OPEC belonged to the appellant. A corporate record search confirmed this. It showed that OPEC was registered by the appellant and that the registration occurred in November 1999, almost a year after the appellant’s arrest. Notably, upon his arrest, the appellant initially denied any knowledge as to the ownership of the soap. When asked about the Dominion Bank in Monseratt, he told the police that he had acquired it for an unrelated business venture.
[13] In sum, the case against the appellant was virtually unanswerable. It consisted of evidence of a number of civilian witnesses who had no reason to falsify their testimony, damning evidence from Warren’s representative and the appellant’s former business associate and ample confirmatory evidence in the form of documents and tape recorded telephone conversations.
The Case for the Defence
[14] Against that mass of evidence, the appellant took the stand and testified that in accordance with his arrangement with Warren, after receiving the soap, he shipped it to Saudi Arabia but the Saudis refused to accept it when they learned that it contained pork by-products. When asked why he had not mentioned the pork problem in his recorded conversations with Warren’s representative, he said that he had raised the issue but that his remarks may have been “erased and removed” from the tapes.
[15] The appellant further testified that when the Saudis returned the soap, he tried to return it to Warren but Warren only wanted its money. Accordingly, he contacted various people in an effort to sell the product overseas. When that failed, he had no choice but to sell it locally for the best price that he could get and that is how the soap came to be sold in Toronto. As it was always his intention to pay Warren, this was the only way that he could do so.
[16] The appellant’s version of the events included colourful details about his purchase of the Dominion Overseas Bank in Monseratt, his many conversations with the Deputy Minister of Saudi Arabia and his close relationship with the Saudi Royal Family, including their interest in purchasing his bank. None of this evidence was confirmed by independent evidence.
[17] Cross-examination of the appellant revealed a host of internal and external inconsistencies. When his testimony did not stack up against the documentary evidence, he countered with a litany of strained and often fanciful explanations.
[18] As for his lengthy criminal record, which included numerous convictions in Canada and the United States for fraud, forgery and other offences involving dishonesty, the appellant claimed that he had pleaded guilty in many instances simply to “get rid” of the offences; in others, he had been pressured to plead guilty by the Italian mafia; and in still others, it was just too costly and time-consuming to defend the case.
[19] In sum, the appellant portrayed himself as an honest businessman who had been maligned and victimized over the years by many, many people. His business venture with Warren was just another example of this.
[20] Unfortunately for the appellant, the jury did not see it that way. They rejected his evidence and found him guilty as charged.
[21] Against that backdrop, I turn to the grounds of appeal.
GROUNDS OF APPEAL
The Charge to the Jury
[22] The appellant complains about several aspects of the trial judge’s charge to the jury. They are fully addressed in his former counsel’s factum.
[23] First, he submits that the trial judge erred in instructing the jury on the Crown’s theory as to motive, namely, that the appellant “was trying to obtain free goods so that he could sell them and make a profit.” The appellant submits that the alleged motive was so trivial and general in nature that it should not have been left with the jury. He further submits that the impugned instruction invited the jury to engage in impermissible bootstrapping.
[24] I see no merit in either argument. There are many reasons why people commit fraud. Greed is certainly one of them. That was the Crown’s position and the trial judge did not err in leaving it to the jury. Having identified the Crown’s position on the issue of motive, the trial judge properly left it to the jury to decide whether the appellant had such a motive, and if so, what weight to give to it. Her instructions reveal no error.
[25] Second, the appellant submits that the trial judge wrongly permitted the jury to consider three items of after-the-fact conduct as evidence from which they could infer guilt. The items in question consist of the appellant’s registration of OPEC in November 1999, almost one year after his arrest; the certified cheque that he took from the Toronto-based company that purchased most of the hand soap; and the appellant’s false statement to the police, upon arrest, that he knew nothing about the ownership of the hand soap and that he had acquired one of the fictitious off-shore banks for an unrelated business venture.
[26] I would not give effect to this ground of appeal. In my view, all of the items in question were properly left as after-the-fact conduct from which the jury could infer guilt. The late registration of the company needs no elaboration. As for the certified cheque, in addition to telling the jury that they could use it to infer guilt, the trial judge also told the jury that they could also use it to infer innocence. In other words, they could view it as evidence of a legitimate business transaction (the appellant’s version) or as evidence of an attempt by him to “paper over” an illicit business transaction (the Crown’s version). Both versions were feasible and the trial judge did not err in her instructions.
[27] With respect to the false statement to the police, I agree with the appellant that the jury should have been told that they could only use it to infer guilt if they were satisfied that it was a concoction: see R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.). The error however was harmless. There was ample evidence to show that the appellant’s statement was not just false but that it was concocted in an effort to mislead the police and obstruct them in their investigation.
[28] Moreover, even if some of the after-the-fact conduct should not have been left to the jury, the appellant suffered no prejudice. Viewed realistically, the after-the-fact evidence was simply “icing on the cake.” Without it, the case against the appellant remained overwhelming. Accordingly, even if some of the after-the-fact conduct should not have been left with the jury, the verdict would inevitably have been the same.
[29] Third, the appellant submits that the trial judge misdirected the jury on the mental element required for the charge of possession over $5,000. Specifically, he contends that the jury may have been misled into believing that recklessness, as opposed to knowledge, would suffice. He further submits that the jury should have been told that if his explanation as to why the Saudis had rejected the soap “could reasonably be true,” he was entitled to be acquitted on the possession charge.
[30] Dealing with these points in reverse order, the trial judge made it clear to the jury that they were to acquit the appellant if they believed his evidence or if it left them in a state of reasonable doubt. Nothing more was required.
[31] As for the mental element on the possession over charge, in her instructions on the mental element required for fraud, the trial judge did not leave recklessness to the jury; rather she put the case to them on the basis of knowledge. The relevant passages are reproduced below:
To prove an intention to defraud the Crown must prove the following: First, that Mr. Deutsch deliberately carried out the acts or business transactions alleged, with knowledge of the facts and circumstances that make this conduct dishonest in the eyes of a reasonable person.
And second, that Mr. Deutsch deliberately carried out the act or business transactions alleged knowing they would create prejudice or risk of prejudice to the economic interest of one or more persons whether or not Warren Distribution was among them. In this case we have heard nothing about anyone but Warren Distribution.
Provided that Mr. Deutsch acted deliberately knowing the facts, circumstances and consequences mentioned above, the Crown will have proven an intent to defraud even if Mr. Deutsch personally believed that his conduct was not dishonest or did not know that reasonable people would see his conduct as dishonest.
[32] Those instructions, which were overly favourable to the appellant, can hardly form a basis for suggesting that the jury may have imported recklessness into the possession charge. The word “reckless” was not used in relation to the fraud charge or the possession charge. This ground, in my view, is frivolous. It is also meaningless since the charge of possession was stayed.
[33] Fourth, the appellant submits that he was prejudiced by the manner in which the trial judge corrected certain misstatements made by him in his closing address to the jury. Specifically, he submits that it was wrong for the trial judge to tell the jury that they need not consider the legality of the search carried out by the police at his business premises as she had “already ruled that the search was legal”. Likewise, he argues that it was wrong to tell the jury that they need not consider the issue of Crown disclosure because she had ruled earlier that the Crown had made adequate disclosure.
[34] The appellant submits that it was unnecessary for the trial judge to mention her earlier rulings and that in doing so, the jury may have seen the appellant “in a negative light” for “raising these matters despite the adverse rulings against him.”
[35] I see no merit in this ground of appeal. The appellant had been given numerous warnings about making inappropriate allegations in his closing address. He chose to ignore them and he was rightly called to account before the jury. Significantly, the trial judge tempered her remarks by reminding the jury that the appellant was not a lawyer. That observation likely would have left the jury with the impression that the appellant’s misstatements were the product of mistake, not design. While that was probably not the case, the appellant benefited from the trial judge’s remark and he has no cause to complain.
[36] As I see it, this is but one of many instances in which the trial judge took care to treat the appellant fairly and ensure that he received a fair trial. In that regard, I have read the charge in its entirety. I am satisfied that it was a model of fairness and objectivity. In a case as lopsided as this one, the trial judge is to be commended for achieving the balance she did.
Other Issues Raised in Oral Argument
[37] In oral argument, the appellant raised a medley of issues that were not raised by his former counsel. I find it unnecessary to spend much time on them since in my view, they are groundless.
[38] First, the appellant complained that he should have been permitted to challenge jurors for cause on the basis that some of his key witnesses were Saudis and some jurors might be prejudiced against Muslims. He presented no evidence to substantiate his bald allegations and the trial judge quite properly rejected the proposed challenge as baseless. In any event, the so-called “crucial” witnesses were never called to testify.
[39] The appellant next argued that the Crown had delayed the commencement of the trial and because of that, “crucial” witnesses from Saudi Arabia were no longer prepared to come to Canada to testify on his behalf. The trial judge rejected his arguments, largely because they were unsubstantiated by any evidence. She rejected his request for commission evidence under s. 714 of the Criminal Code, R.S.C. 1985, c. C-46, for the same reason. In my view, she made no error.
[40] Next, the appellant complained that the Crown had breached his rights under s. 7 of the Canadian Charter of Rights and Freedoms by not providing him with complete disclosure. He also argued that the police had breached his s. 8 privacy rights when they searched his business premises. The trial judge considered and dismissed both motions. In doing so, she made findings of fact that are supported by the evidence and she applied the correct legal principles. I see no basis for interfering with her rulings.
[41] Other issues concerning amicus curiae and allegations of conflict of interest relating to a former lawyer were properly disposed of by the trial judge as groundless.
[42] In sum, I see no merit in any of the issues raised by the appellant in oral argument.
The French Language Issue
Relevant Statutory Provisions
[43] Sections 530(1) and 530(4) of the Criminal Code provide as follows:
s. 530(1) On application by an accused whose language is one of the official languages of Canada, made not later than
(a) the time of the appearance of the accused at which his trial date is set, if
(i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or
(ii) the accused is to be tried on an indictment preferred under section 577,
(b) the time of the accused’s election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or
(c) the time when the accused is ordered to stand trial, if the accused
(i) is charged with an offence listed in section 469,
(ii) has elected to be tried by a court composed of a judge or a judge and jury, or
(iii) is deemed to have elected to be tried by a court composed of a judge and jury,
a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.
(4) Where an accused fails to apply for an order under subsection (1) or (2) and the justice of the peace, provincial court judge or judge before whom the accused is to be tried, in this Part referred to as “the court”, is satisfied that it is in the best interests of justice that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, the official language of Canada in which the accused, in the opinion of the court, can best give testimony, the court may, if it does not speak that language, by order remand the accused to be tried by a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak that language or, if the circumstances warrant, who speak both official languages of Canada.
Background
[44] At the outset of his trial before McWatt J. in the Superior Court of Justice, the appellant applied to have his trial conducted in the French language. The Crown opposed the application and filed material to show that the appellant lacked the proficiency needed to instruct counsel or follow the proceedings in the French language. According to R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 34, that is the test the Crown was required to meet to defeat an application under s. 530(1) of the Criminal Code.
[45] Included in the material filed by the Crown was a transcript from a proceeding before Khawly J. of the Ontario Court of Justice dated May 25, 2000, in which Khawly J., on his own motion, had rescinded an order made by Otter J. of the Ontario Court of Justice on April 5, 2000, granting the appellant’s application under s. 530(1) of the Criminal Code to have the proceedings against him conducted in the French language. Otter J.’s order, it should be noted, was made on consent of the Crown. Accordingly, at that stage of the proceedings, the appellant’s French language skills were not tested.
[46] In rescinding Otter J.’s order, Khawly J. (a bilingual jurist) commented as follows on the appellant’s level of comprehension and verbal skills in French:
[H]aving already had the experience of Mr. Deutsch appearing before me as an agent on an appeal matter in French, I came to the conclusion that his level of comprehension and verbal skills in French are quite limited. His native tongue is English and he’s much more able to have a discussion in English. Henceforth we won’t proceed in French. It defeats the purpose of the legislation [emphasis added].
[47] Other material filed by the Crown showed that the appellant had, in the past, fraudulently misrepresented himself as a lawyer to several courts in the United States. From this, the Crown argued that the appellant was not to be trusted and that his French language application was yet another attempt to deceive the court.
[48] The appellant did not testify on the application before McWatt J. His attempts to give evidence in the course of argument were rightly rebuffed. The appellant did file a transcript from a proceeding held on September 14, 1999 before Napier J.P., of the Ontario Court of Justice. The proceeding related to a charge under the Provincial Offences Act, R.S.O. 1990, c. P.33, against one Steven Sousa, for whom the appellant was appearing as agent. According to the transcript, the appellant sought to have the proceedings conducted in French even though Mr. Sousa did not speak one word of French. The excerpt filed by the appellant is in French. Presumably, he thought it would assist in convincing McWatt J. that he could adequately communicate in the French language. In fact, it had just the opposite effect. At page 3 of the transcript, Napier J.P., a bilingual jurist, referred to certain motion material filed by the appellant and the following exchange occurred:
LA COUR: Qu’est-ce que c’est que ça? Qu’est-ce que c’est que ça? “La notification de la geste (sic) faire attention qu’une geste sera composée c’est ce de la discussion …” Est-ce que c’est du Français ou du Chinois ça?
MR. DEUTSCH: C’est ma secrétaire qui a préparé ça.
LA COUR: Certainement, ça n’a aucune valeur. C’est absolument illisible en Français. J’ai ici quelque chose en Anglais.
[49] Thereafter, Napier J.P. ordered that the proceedings be conducted in English.
[50] Notably, on the same day as the Sousa matter, the appellant appeared before Napier J.P. as agent on another matter, this time for Fleet Rent-A-Car. Again, the appellant sought to have the trial conducted in French. On the application before McWatt J., the Crown filed excerpts from that transcript to show that the appellant lacked the proficiency needed to instruct counsel or follow the proceedings in French:
THE COURT: The client who speaks French has the right to a French trial. The agent that doesn’t speak French does not –
MR. DEUTSCH: Mais moi – moi je parle français.
THE COURT: Yes, I had a sample this morning of your French. Those matters are going to be put in an English court, H Court in the day. I am not going to block the French court with those matters.
THE COURT: Am I right to say you are not a member of the Upper Canada Law Society?
MR. DEUTSCH: No, I’m a member of the New York State bar and Quebec –
THE COURT: So, as far as I’m concerned, okay, you are an agent here. Section 50-3 of the Provincial Offences Act allows me to bar an agent from my court. Competency comes also for the language and language is part of the competency. I have ruled this date and before that you are not competent in the French language.
The regular and normal clerk of the court who was here cannot understand when you speak French. Therefore, she could not even do a transcript in French. Madam Court Reporter today told me that she could not understand your French and I have here a wonderful sample of your French, which is an insult to the French language, sir.
So therefore, you are not to appear before me in French.
[51] Once again, Napier J.P. ordered that the Fleet Rent-A-Car case be conducted in English.
[52] Based on the material before her, McWatt J. rejected the appellant’s application and ruled that the trial would be conducted in English. Her reasons, though brief, are cogent and to the point. They are reproduced in full below:
Mr. Melvin Deutsch stands charged before this court with fraud over $5,000 and possession of property obtained by the commission of an indictable offence. He is self-represented.
He has made an application to have his trial in French insisting that the judge, prosecutor and the jury be French speaking. On this motion Mr. Deutsch has sworn that his Notice of Motion shall serve as the evidence he wishes to tender on this motion.
There is little evidence before me in relation to this application, but what evidence there is begins at paragraph 12 of the Notice of Motion which I have now marked as Exhibit Number 3 on this part of the proceedings.
Mr. Deutsch’s right to a French trial is established in s. 530 of the Criminal Code. That right was explored by the Supreme Court of Canada in R. v. Beaulac (1999), 134 C.C.C. (3d) 481.
It is important to understand and this court acknowledges that Mr. Deutsch’s right to a French trial cannot be denied due to administrative inconvenience. S. 530(1) of the Criminal Code is applicable to this case given the timing of Mr. Deutsch’s application. The section permits Mr. Deutsch to have a trial by a judge and jury “who speak the official language of Canada, that is the language of the accused.”
What is the language of Mr. Deutsch? The evidence from Mr. Deutsch is slim if not non-existent. However, I accept his assertion that he has a right to have a trial in French as an assertion and his submissions to me are that he is better trained to deal with legal issues while speaking French.
He demonstrated his ability to read French during his submissions which alarmed me to an extent as he was not reading the words of the transcript. I do not take that as evidence that he is not able to read French, but it causes me concern.
I have, however, read transcripts and documents filed by the Crown in its response to Mr. Deutsch’s assertion that he should have a French trial. That evidence leads me to conclude that the Crown [has] successfully challenged Mr. Deutsch’s assertion that his language is French.
The Crown has satisfied the onus placed on it to show that Mr. Deutsch’s assertion is unfounded. In fact, it seems clear that Mr. Deutsch’s language is English and his inability to operate in the French language might seriously impair the trial process. The trial shall be conducted in English.
Analysis
[53] Apart from the issue of jurisdiction, which I shall address shortly, I see no basis for interfering with McWatt J.’s decision. She applied the correct legal principles from Beaulac, supra, to the facts as she found them. Her factual findings are supported by the evidence. Accordingly, if she had jurisdiction to entertain the matter, her decision is entitled to stand.
[54] The appellant directed the bulk of his argument toward the question of jurisdiction. He submits that McWatt J. had no jurisdiction to interfere with Otter J.’s order of April 5, 2000 directing that the proceedings against him be conducted in French. Otter J.’s order was binding and Khawly J. had no jurisdiction to rescind it. Accordingly, McWatt J.’s order, requiring that the appellant be tried in English, effectively amounted to an impermissible collateral attack on Otter J.’s order and as such, it was a nullity. It follows, the appellant submits, that he was deprived of his right to be tried in French and that he is therefore entitled to a new trial.
[55] I do not accept that argument. For reasons that follow, I am satisfied that McWatt J. did have jurisdiction to make the impugned order.
[56] First, in light of Beaulac, supra, it is now clear that orders made under s. 530(1) or (4) of the Criminal Code are not subject to the collateral attack rule. The following passages at paras. 11 and 30 of that decision are apposite:
[11] During the pre-trial hearing of July 4, 1994, the accused applied again for a trial before a judge and jury who speak both official languages of Canada. Owen-Flood J., who, like Rowles J., was not the judge before whom the accused would be tried, dismissed the application. The trial proceeded in English and the appellant was convicted. The Court of Appeal assumed that the order made pursuant to s. 530(4) was an order pertaining to the judicial process and that it could therefore be attacked collaterally under the principles articulated in R. v. Litchfield, [1993] 4 S.C.R. 333. It dismissed the appeal from conviction on October 29, 1997, upholding the decision of Owen-Flood J. on the language issue: (1997), 1997 3579 (BC CA), 120 C.C.C. (3d) 16. It is this decision that is currently under appeal. The respondent did not argue against the appellant’s appeal on the basis of the rule against collateral attack. Although it is not technically necessary to deal with this latter issue, I would lift the uncertainty of the Court of Appeal’s decision by saying that the order under s. 530(4) governs the judicial process itself, rather than the conduct of the parties, such that traditional concerns as to certainty and the need for the orderly administration of justice are not brought into play. The order would have been subject to review if it had been made by the trial judge, and the appellant should not be penalized for having brought the application in a timely manner prior to the trial rather than at the trial proper. I would therefore conclude that the rule against collateral attack had no application in the present case and that the Court of Appeal had jurisdiction to deal with the language issue.
[30] In my view, this argument does not address the substantive issue raised and is therefore not sufficient to justify the decision. After all, Rowles J. herself was neither a “justice of the peace” nor a “provincial court judge”, nor was she the “judge before whom the accused [was] to be tried” at the time she made her decision; yet, she took jurisdiction over the s. 530(4) application. Considering the importance of language rights and the obvious desire of the legislator that language issues be decided as soon as possible in the trial process, I believe Rowles J. was empowered to make such an order. The same reasoning, however, applies to s. 530(1). Furthermore, since the date of her reasons, this Court has had the opportunity of dealing with directions for a new trial. In R. v. Thomas, [1998] 3 S.C.R. 535 at para. 22, Lamer C.J. explains that to order a new trial must mean a “full” new proceeding. It is consistent with this reasoning to hold that the accused ordered to face a new trial is in a position quite similar to that of an accused who is ordered to stand trial for the first time, as contemplated by s. 530(1) [emphasis added].
[57] Accordingly, even if Otter J.’s order was outstanding at the commencement of the trial before McWatt J., it would have been open to the Crown to re-visit it and seek to have it set aside. To do so, the Crown would have had to meet the stringent test set forth in Beaulac. As I have already explained, the Crown did just that in the application before McWatt J.
[58] That is one way of looking at the jurisdictional issue. There is however another way.
[59] As I noted earlier, on May 25, 2000, Khawly J. rescinded Otter J.’s order and directed that the proceedings against the appellant be conducted in English. And that is what occurred. The appellant opted to have a preliminary hearing and the hearing was conducted in English, without objection from the appellant.
[60] Following his committal for trial, the appellant brought a certiorari application in the Superior Court seeking, among other things, relief from various interlocutory rulings including Khawly J.’s ruling denying his request for a trial in French. The application was heard by O’Driscoll J. and the appellant made extensive submissions on the French language issue. O’Driscoll J. dismissed the application in its entirety: see R. v. Deutsch, [2001] O.J. No. 5767 (S.C.J.). In his reasons, he gave the French language issue short shrift, holding only that a trial in French “would have brought the administration of justice into disrepute.”
[61] The appellant appealed from the order of O’Driscoll J. to this court. In a brief endorsement, dated December 27, 2001, the court dismissed his appeal on the basis that the appellant was essentially attempting to litigate interlocutory rulings ([2001] O.J. No. 5081 (C.A.)). A further application for leave to appeal to the Supreme Court of Canada was dismissed on May 2, 2002 ([2002] S.C.C.A. No. 28).
[62] I mention the certiorari application because it may provide a full answer to the appellant’s argument that Khawly J. had no jurisdiction to rescind Otter J.’s order and that Khawly J.’s order was therefore a nullity. To the extent that that issue was raised before O’Driscoll J., it is at least arguable that O’Driscoll J. did not give effect to it.
[63] For present purposes, I need not finally decide whether Khawly J. did or did not have jurisdiction to review and rescind Otter J.’s order. I say that in full recognition of the Crown’s concession that he did not. The Crown may be correct but I prefer to leave the issue undecided until it presents as the determinative issue.
[64] Assuming, for the sake of argument, that Khawly J.’s order was made without jurisdiction, it was nonetheless an order of the court and it was the last order on the language issue before trial. Presumably, had the appellant chosen to do so, he could have brought a certiorari application before the preliminary hearing to have Khawly J.’s order quashed. He did not. It was never set aside, nor was it declared to be a nullity.
[65] Viewed that way, it is at least arguable that the appellant’s application before McWatt J. to have his trial conducted in French amounted to a collateral attack on Khawly J.’s order. Obviously, for reasons already discussed, the collateral attack rule would not have prevented him from raising the issue. Nor did it. The appellant had a full hearing before McWatt J. and from my review of the proceedings, it would appear that everyone approached the matter as though it was an original application under s. 530(1) and not a late-blooming application under s. 530(4), with its attendant “best interests of justice” component.
[66] Based on my analysis, it matters not whether Khawly J.’s order was or was not outstanding at the commencement of the trial before McWatt J. Either way, McWatt J. had the jurisdiction to revisit the language issue. Accordingly, I would not give effect to this ground of appeal.
[67] For these reasons, I would dismiss the appeal from conviction.
SENTENCE
[68] The appellant appeals his sentence of four years in the penitentiary. I see no reason to interfere.
[69] As the trial judge observed, the appellant has a significant and extensive criminal history, including many convictions for fraud and other offences of dishonesty. In his written submissions to this court, counsel for the Crown put it fairly when he observed that the appellant “has been defrauding the Canadian and American public with alarming frequency over the past 20 years. Given his criminal history, he may have been fortunate not to receive a more severe sentence.”
[70] I agree. The appellant is a life-long fraud artist. He is incorrigible and he is a menace to society. In his case, I see virtually no hope of reformation. Any sentence imposed on him must give precedence to the principles of denunciation and general and specific deterrence. In the appellant’s case, I also believe that there is an overriding need to segregate him from society. That would appear to be the only way the public can be protected from him.
[71] The sentence imposed by the trial judge was not excessive. If anything, I believe that it was lenient.
[72] In the circumstances, I would deny leave to appeal. The appellant’s proposed appeal against sentence is utterly devoid of merit.
Signed: “M. Moldaver J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree J. MacFarland J.A.”
RELEASED: “RPA” December 23, 2005