Court of Appeal for Ontario

CITATION: R. v. Topol, 2008 ONCA 113

DATE: 20080219

DOCKET: C47399

WINKLER C.J.O. and SHARPE and JURIANSZ JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN Appellant

and

ROBERT TOPOL Respondent

Counsel: Alexander Hrybinsky for the appellant Boris Bytensky for the respondent

Heard: February 14, 2008

On appeal from the judgment of Justice Ian V.B. Nordheimer of the Superior Court of Justice dated June 22, 2007.

ENDORSEMENT

[1] This is a Crown appeal from an order of Nordheimer J. staying nine charges of fraud over $5,000 against the respondent because there had been an unreasonable delay infringing his rights under s. 11(b) of the Charter.

[2] The respondent is the former chief operating officer of a publicly traded company. The charges arise out of alleged misrepresentation of the company’s financial affairs in its financial statements. He was charged along with three others, who face additional charges as well.

[3] The respondent was arrested and charged on October 22, 2002 following a police investigation that commenced in 1998. His preliminary inquiry was completed on April 6, 2005 and a direct indictment was preferred against him on April 18, 2005. The respondent first appeared in the Superior Court on May 25, 2005. Nordheimer J. stayed the charges on June 22, 2007 at which time his trial was set for October 2007.

[4] The appellant recognizes that the length of the delay, approximately five years, is clearly sufficient to warrant scrutiny by the court. However, the appellant submits that the application judge erred by understating the inherent time requirements of the case and by allocating to the Crown some delay that resulted when a trial date was lost.

[5] The application judge assessed the inherent time requirements to be nine months in the Ontario Court and six months in the Superior Court. The appellant submitted these assessments were too low relying mainly on the fact that this was a complex case with a massive volume of documentary evidence.

[6] In the Ontario Court, pre-trials were held throughout a year but the appellant urged this was necessary for the parties to grapple with the issues and evidence. There was, the appellant said, no objection to the pace of proceedings. The appellant had urged the application judge that the inherent time requirements in the Ontario Court should be set at fifteen months.

[7] In the Superior Court the appellant had urged the inherent time requirements should be set at eighteen months. The respondent initially intended to represent himself and did not retain counsel until the summer of 2006. The appellant submitted that it should have been apparent to the respondent that he needed counsel for this complex case before he retained one in the summer of 2006. The appellant points out that when his counsel, once retained, was removed from the record in October of 2006, the respondent’s new counsel was not available for trial until September 2007 and a trial date was ultimately set for October 2007.

[8] These were all matters that were considered by the application judge.

[9] The application judge recognized the size and complexity of the case but he also considered the long investigation in assessing its inherent time requirements. He was clear that pre-charge delay could not be included in the consideration of whether the delay was unreasonable. However, he went on to reason:

“if the complexity of the case and the amount of disclosure required is asserted as a reason to increase the inherent time requirements of the case then, in making the determination of what is a reasonable period of time for those steps, some consideration must, in fairness, be given to the amount of time that the police and the Crown had, or took, to address those issues before charges were laid.”

[10] The application judge found as a fact that the work done during the four-year investigation that preceded the laying of charges made it possible for the Crown to make disclosure in relatively short order. He also found the record did not reveal why the several pre-trials were scheduled months apart. His careful reasons make clear he did not arbitrarily use the lengthy pre-charge investigation to reduce the assessment of the inherent time requirements of the case.

[11] The application judge noted the respondent was unrepresented while the case was in the Ontario Court. He also found as a fact that the rupture in the relationship between the respondent and his first counsel would not have occurred but for the loss of the trial date in October 2006. The trial date was lost because of the disclosure, just before the trial was set to begin, of the induced statement of a co-accused who decided to plead guilty. The new trial was ultimately scheduled for October of 2007, a year later. The application judge divided that year equally between the complainant and the Crown.

[12] The appellant argues that the Crown should not be penalized for obtaining and disclosing an unforeseen witness statement. While that may be so, it is not, on our reading of his reasons, the basis upon which the application judge proceeded. The judge was aware from his experience in setting trial dates in Toronto and that a new trial date could have been set about six months after the lost trial date. As we see it, the six months the application judge attributed to the Crown was in the nature of institutional delay, for which the Crown is responsible. The trial judge allocated the other six months to the respondent.

[13] The single largest cause of the delay in this case, as the application judge observed, was the busy schedules of counsel for the other accused. He rejected the Crown’s position that the delay due to the unavailability of counsel for the co-accused should be considered neutral time. He found on the facts of this case, the Crown consistently consented to delays in setting a trial date in order to accommodate the schedules of counsel for two of the other accused. He found that the Crown had failed to consider the impact of delays on the appellant equally with its consideration of the schedules of counsel for the other accused. He stated that as the time period lengthened, the Crown had to decide between ceasing its practice of accommodating those counsels’ schedules or proceeding with the appellant separately from those other accused. We see no error in the application judge’s approach.

[14] Nor do we agree that the application judge erred by failing to properly weigh and assess the compelling societal interest in this large case proceeding to trial. In our view the application judge carefully applied the proper legal principles, balanced the appropriate factors including the inferred and actual prejudice suffered by the respondent. In the end, and apart from the specific causes of this or that delay at various points in time, the matter must be viewed globally and even on the appellant’s argument, there remains a significant period of unreasonable delay.

[15] The appeal is dismissed.

“W.K. Winkler C.J.O.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”