CITATION: R. v. Horgan, 2007 ONCA 869

DATE: 20071211

DOCKET: C44336

COURT OF APPEAL FOR ONTARIO

ROSENBERG, LANG and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

BRIAN HORGAN

Appellant

Michael Dineen for the appellant

Matthew Asma for the respondent

Heard: November 27, 2007

On appeal from the dismissal of the s. 11(b) stay application by Justice John F. Hamilton of the Superior Court of Justice on February 2, 2002 and the conviction entered by Justice Peter G. Jarvis of the Superior Court of Justice, sitting without a jury, on December 3, 2004.

ENDORSEMENT

[1] The primary ground of appeal arises from the appellant’s unsuccessful motion to have the fraud charges against him stayed on the basis of a violation of his right to trial within a reasonable time under s. 11(b) of the Charter. After the dismissal of his motion, and the trial that followed, the appellant was convicted of one count of theft over $1,000. A second count of fraud was stayed. The appellant’s secondary ground of appeal is that his conviction was based upon findings made by the trial judge that were unsupported by the evidence.

[2] The fraud for which the appellant was convicted was an historical one. The appellant, a lawyer, had power of attorney over a Ms. Bourne’s financial affairs. He was also the executor and sole beneficiary under her will. Ms. Bourne purchased several annuities from Sun Life, from which she received monthly payments deposited automatically to her bank account. Ms. Bourne died in December 1990. Unaware of her death, Sun Life continued to deposit the payments into Ms. Bourne’s bank account, which was controlled by the appellant. In December 1994, Sun Life learned of Ms. Bourne’s 1990 death.

[3] The Crown alleged that the appellant deliberately failed to notify Sun Life of Ms. Bourne’s death in order to collect money to which, to his knowledge, he was not entitled. The defence position was that the appellant had notified Sun Life of Ms. Bourne’s death and that he believed the annuities continued to be payable for five years after death.

[4] The appellant was charged in 1998. However, because he was hospitalized for depression, he was not arrested until February 1999. Initial Crown disclosure was provided in July 1999. The appellant requested further disclosure, first in December 1999 and again in March 2000. By letter dated March 8, 2000, the Crown refused that further disclosure. Successive judicial pre-trials and set date appearances were adjourned. The preliminary inquiry began October 5, 2001 and concluded in March 2003, when the appellant consented to committal. The appellant takes no issue on this appeal with the delay in the Superior Court; however, for completeness we note that further delays resulted involving legal aid and the retention of new counsel. The s. 11(b) application was heard and dismissed in February 2004 and the trial commenced and concluded in the fall of 2004. After the conclusion of trial, the defence brought an unsuccessful application to re-open the trial and to seek a stay of proceedings for abuse of process. Following the failure of this application, the appellant was sentenced on November 4, 2005 to a conditional sentence of two years less a day.

[5] When Hamilton J. heard the stay application on February 2, 2004, nearly five years had passed since the appellant’s arrest. The application judge, who correctly recognized that this was a significant delay that merited scrutiny, dismissed the application after considering the reasons for the delay, including issues surrounding disclosure, the series of pre-trial adjournments, the circumstances of the preliminary inquiry and the changes in defence counsel, and after finding no more than minimal prejudice to the appellant inferred from the delay. In arriving at this result, the application judge concluded that seven months of the delay (waiting for preliminary inquiry dates) was institutional delay. He found the balance of the delay was either inherent delay or delay attributable to the defence.

[6] The finding of seven months institutional delay is not challenged. On appeal, the appellant challenges the application judge’s findings in three areas: first, the delay surrounding the requested further disclosure and the serial unproductive adjournments; second, the delay during the preliminary inquiry; and third, the prejudice suffered by the appellant.

[7] First, the appellant argues that the application judge erred in failing to attribute delay to the Crown from the December 22, 1999 hearing to set a date through to the November 8, 2000 pre-trial, which was adjourned due to the untimely death of defence counsel.

[8] According to the appellant, the appearances were unproductive in the challenged period in part because Crown counsel either did not have the Crown brief or did not have a sufficient grasp of the case to engage in disclosure discussions. The appellant argues that this delay should be attributed to the Crown because it failed to assign the case (which was then described as complex) to a specific Crown counsel, or at least to have a properly instructed counsel attend the pre-trials. In our view, while the Crown was under no obligation to assign a specific Crown counsel, it was obliged to have counsel attend at the pre-trials who had the necessary familiarity with the case. As the Crown fairly concedes, it failed to do so.

[9] However this failure was not the root cause of the adjournments. Rather, the adjournments arose from the defence desire to discuss the Crown’s disclosure refusal regarding the various third party records. There are two points to be made. First, the defence never told the attending Crowns in the challenged period that the disclosure issue had already been addressed by the March 8 letter. Second, the requested third party records were in the possession of such institutions as the Law Society of Upper Canada, the Ontario Legal Aid Plan, Revenue Canada and the Public Trustee. While the appellant relies on R. v. Arsenault (1994), 93 C.C.C. (3d) 111 (N.B.C.A.) at p. 117 for the principle that Crown counsel has a duty to make reasonable inquiries of other Crown agencies that could be in possession of evidence, in that case the Crown agency at issue had been involved in the investigation that led to the criminal charges and was in attendance at virtually all court proceedings. That is different from this case. Here, there was no suggestion that the third parties were involved in any way in the investigation that led to the charges against the appellant and therefore no evidence that their files were subject to Crown disclosure obligations. We also note that it appears the defence was already aware from the civil proceedings that some of the requested files were no longer available.

[10] In any event, as we have said, the Crown refused disclosure of these records as early as March 8, 2000 on the basis that they were not in the Crown’s possession. Although it was not unreasonable of the defence to suggest discussion about the issue at a judicial pre-trial (rather than incur the delay and expense of litigating the matter in a Superior Court disclosure motion), the defence cannot now attribute the resulting delay to the Crown in light of its clear position on the issue and, particularly so where the defence could not realistically expect the Crown to secure the requested materials from the third parties in the circumstances of this case.

[11] Since the root cause of the delay in the challenged period had already been addressed by the Crown in its March 8, 2000 letter, we would attribute only three months to Crown delay, comprised of two months from January 18 to March 15, 2000, for late disclosure, and one further month because the Crown appeared without its brief. No delay should be attributed to the Crown from April 17 because the subsequent delay resulted from the defence continuing to press for disclosure that had already properly been refused by the Crown. We also note that the request for disclosure was subsequently abandoned by the defence.

[12] The second delay challenged on this appeal occurred during the preliminary inquiry from January 23, 2002 until September 19, 2002.

[13] The preliminary inquiry, which the Crown estimated would take three days, was scheduled for October 2, 5 and 9, 2001. The judge was unavailable on the first day. On October 5, the preliminary inquiry began, but was interrupted for an unrelated matter. Defence counsel advised the court that he would not be available on October 9 and, anticipating that the inquiry would not “be very long”, waived any s. 11(b) delay until the inquiry was concluded. Although the inquiry resumed on January 23, 2002, it was adjourned first to May and then to September 2002 and then further adjourned.

[14] On the hearing of the s. 11(b) stay motion before the application judge, the Crown agreed with the defence that only the three-and-a-half months from October 2001 to January 2002 should be attributed to the defence. Notwithstanding this agreement, the application judge found that the entire subsequent delay of the preliminary inquiry was attributable to the defence by reason of its waiver. We do not agree. In our view, the Crown’s concession on this point was reasonable in the context of the expectations of all the participants that the preliminary inquiry would be concluded within the next short number of months. At a minimum, the application judge was not entitled to reject this concession on the Crown’s part, at least without explicitly addressing the matter in his reasons and explaining why he did so.

[15] Nonetheless, even accepting that the delay during the preliminary inquiry flowing from the defence waiver should be limited to three-and-a-half months, we do not accept the appellant’s submission that the balance of the disputed delay from January to September should be attributed to the Crown.

[16] We come to this conclusion because explanations were provided for the intervening delays. The preliminary inquiry continued on January 23 with evidence. However, defence counsel asked to leave early for reasons relating to a medical appointment, which was accepted by the judge who also had a medical appointment. When the inquiry resumed on May 14, after an initial interruption for an in-custody trial, defence counsel asked that the matter be adjourned because he found the courtroom to be “awfully hot”. In addition, counsel alluded to ongoing off-the-record discussions that they wished to continue.

[17] On September 19, the Crown called evidence after which the parties discussed the possibility of re-electing and converting the preliminary inquiry into a trial. The appellant does not argue that the subsequent delays of the preliminary inquiry are attributable to the Crown. Further, we note that in the end the preliminary inquiry did not take significantly longer than the equivalent of the three full days originally estimated.

[18] In light of these events, we agree with the application judge that the period of delay between January and September 2002 is not attributable to the Crown or to institutional delay. Rather much of the delay was either responsive to the requests of the defence or was attributable to inherent scheduling issues.

[19] Accordingly, we conclude only the three months of delay is attributable to the Crown. Added to the seven months of institutional delay that is not challenged on this appeal, the total delay for the purposes of the s. 11(b) application is ten months.

[20] Finally on this issue, the appellant argues that the application judge erred in finding only minimal, if any, prejudice to the appellant as a result of the delays. On the application, the appellant relied on a brief affidavit from his physician that showed the appellant was suffering from major depression and post-traumatic stress disorder, which was exacerbated by the delay. However, on appeal, the appellant points to more extensive medical evidence, including evidence that the appellant was heavily medicated for these conditions throughout the proceedings. He also argues that the appellant had not practised law since 1994, he was under administrative suspension by the Law Society, discipline proceedings were outstanding, his marriage had ended, he was living in a shelter and that further prejudice could be inferred from the length of the delay, all of which prejudice was enhanced by the appellant’s vulnerability. In our view, the subsequent evidence from the trial and sentencing is not admissible on this issue. That evidence was available through the exercise of reasonable diligence and, in any event, could not have been expected to change the result. It merely elaborated on evidence that was already before the application judge in the physician’s affidavit.

[21] While we tend to think that the application judge underestimated the impact of the delay on the appellant’s health, the fact remains that much of the appellant’s mental health and other problems pre-dated the charges. By the time of his arrest, his marriage had broken down, he had experienced deaths in his family and he was hospitalized for depression. While there is no question that the delay in bringing the charges to a hearing in this case exacerbated the difficulty, we are satisfied that any prejudice suffered is balanced by the societal interest in the prosecution of the offences.

[22] In the result, the combined ten months of institutional and Crown delay falls within the ten months recognized as acceptable in R. v. Morin, (1992), 71 C.C.C. (3d) 1 (S.C.C.). Moreover, as the defence argued at the time, this case was perceived to be an historical and complex fraud. Thus, even if an additional month of delay was attributed to the Crown, a case such as this necessitates longer inherent time requirements. See Morin at p. 16. Even considering the prejudice suffered by the appellant, the interest in bringing the charges to trial outweighs any interest in obtaining a stay of proceedings on account of delay.

[23] Accordingly, we would not give effect to this ground of appeal.

[24] We turn to the appellant’s final issue of the conviction appeal, which is based on the ground that the trial judge’s conclusions are unsupported by the evidence. We did not find it necessary to call upon the Crown to respond to this ground of appeal. In our view, the two misapprehensions of evidence that are conceded by the Crown were inconsequential. First, the evidence regarding Sun Life’s communication of the terms of the annuities, including that the annuities did not provide for death benefits, was contained in a letter that Sun Life testified through its agent was sent to the appellant. The trial judge’s additional reference to a telephone call to the same effect was in error; however, it was a harmless error in light of the evidence regarding the written correspondence. The crucial conclusion of the trial judge that the appellant knew the deposits from Sun Life were made in error, or that he was reckless about that fact, flowed from the court’s other findings, including that the “Balder” opinion letter was “error-laden” and that the appellant knew about the ongoing Sun Life deposits.

[25] Second, the appellant takes issue with the trial judge’s mistaken inference that, because the appellant had information about the annuities sufficient to request an opinion about them from another lawyer, he must have received that information from Sun Life. The respondent fairly concedes that it is also possible that the appellant had this information, not from Sun Life, but from his management of Ms. Bourne’s affairs and his possession of her financial documents. The alleged error is immaterial, however, because the relevant fact was not how the information came to the appellant’s attention, but rather that he was in possession of it through the annuity contracts and that he would have been aware of their contents.

[26] Finally, in our view, there was more than sufficient evidence to support the trial judge’s conclusion that the appellant had the necessary subjective mens rea, including the appellant’s withdrawal of over $100,000 from Ms. Bourne’s account between the date of her death and the date the account was frozen, his extensive knowledge of Ms. Bourne’s financial affairs, his activities in conducting Ms. Bourne’s banking transactions during her life and after her death, his inquiries to Sun Life about the particulars of the annuities in 1994, and the circumstances surrounding the Balder letter of opinion.

[27] Accordingly, we would not give effect to this ground of appeal.

[28] In the result, the appeal is dismissed.

“M. Rosenberg J.A.”

“S.E. Lang J.A.”

“Paul Rouleau J.A.”