WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

(4) [Repealed, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

Court File and Parties

CITATION: R. v. Cranston, 2008 ONCA 751

DATE: 20081106

DOCKET: C47751

COURT OF APPEAL FOR ONTARIO

Cronk, Gillese and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Robert Cranston, Robert Solleveld and Desiree Solleveld

Respondents

Gillian Roberts, for the appellant

Mark Sandler and Jill R. Presser, for the respondent, Robert Cranston

Robert Solleveld, in person

Desiree Solleveld, in person

Heard: June 19, 2008

On appeal from the stay of proceedings imposed by Justice C. Raymond Harris of the Superior Court of Justice on August 27, 2007.

Gillese J.A.:

OVERVIEW

[1] On November 4, 2003,[^1] Robert Cranston, Robert Solleveld, and his wife, Desiree Solleveld (the respondents) were charged with 32 counts of fraud and conspiracy. It was the Crown’s theory that the respondents were running a “prime bank” or “high yield” investment scam. In this type of commercial fraud, people invest in transactions that purport to provide extremely high returns without risk of loss of the principal investment but the transactions do not exist.

[2] At the preliminary inquiry, [As a result of the publication ban, the text will not be posted on the Court's web site until such time as the preliminary inquiry and trial, if any, is completed. While copies of the full text of the judgment may be obtained from the Registry of the Court of Appeal, such copies and information contained therein are subject to the same order prohibiting publication of details of the evidence adduced at the preliminary inquiry until the conclusion of any trial in this matter.]

[3] On March 10, 2006, following the completion of a 29-day preliminary inquiry, the respondents were committed to stand trial on two global counts of fraud. Cranston and Robert Solleveld were also committed to stand trial on conspiracy to commit fraud over $5,000 and Cranston was committed on an additional fraud charge relating to a specific investor.

[4] Before the trial began, the respondents brought an application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms for a stay of proceedings on the ground that there had been an unreasonable delay in bringing the matter to trial. On August 27, 2007, Harris J. of the Superior Court of Justice granted a stay after concluding that the respondents’ right to a trial within a reasonable time had been infringed.

[5] The Crown appeals. It submits that the trial judge erred in his allocation of the delay, his determination of prejudice caused by the delay, and failing to recognise the seriousness of the alleged offences.

[6] For the reasons that follow, I would allow the appeal, set aside the stay of proceedings and order that the matter proceed to trial.

A BRIEF CHRONOLOGY

[7] Robert and Desiree Solleveld ran an investment club called TCSI Incorporated or Club TCSI (“TCSI”). TCSI purported to provide investors with the opportunity to invest in complicated international banking transactions that provided extremely high rates of return without any risk of loss of the capital invested. Despite these assurances of guaranteed high rates of return and no risk of loss to invested capital, investor after investor testified at the preliminary inquiry that neither occurred.

[8] Robert Cranston operated a business called Island Holdings or Paradise Holdings. He solicited funds for the same investment purpose as TCSI and gave generally the same types of documents and assurances as those given by TCSI. Again, his investors lost most of their investments.

[9] There were two investigations into the investment activities of the Sollevelds. In 2000 or 2001, the RCMP in London conducted an investigation into the Sollevelds’ activities that resulted in no charges being laid. In 2002, a second investigation was commenced by the RCMP in Hamilton as a result of a complaint about Cranston by a dissatisfied investor. The second investigation led back to the Sollevelds and resulted in them being charged, together with Cranston, on November 4, 2003.

[10] The second investigation was large and complicated. Disclosure filled over 100 volumes of bound documents. Scott McBride, a forensic accountant retained by the RCMP in Hamilton to assist with the investigation, spent 1100 hours reviewing the documents that had been seized from the respondents and their banks, and preparing a lengthy multi-volume report.

[11] The respondents were released on bail on November 19, 2003. The bail conditions required the respondents to: remain in Ontario; not enter onto airport grounds; report weekly to the local RCMP detachment; not solicit or conduct transactions or business as a financial planner or investment counsellor whether remunerated or not; not offer or give financial advice, whether that advice was solicited or not; and not dispose of or dissipate any business assets or real or personal property.

[12] At the request of the Sollevelds, there were numerous adjournments or delays between November 19, 2004, and mid-February 2005. The adjournments were sought because of Mr. Solleveld’s expectation that he would receive funds that could be used to pay legal expenses and make restitution, and thereby possibly resolve matters. No one seriously challenged the requested adjournments as everyone had the legitimate hope that Mr. Solleveld would, indeed, come into funds.

[13] On February 15, 2005, the parties set a trial date of August 16, 2005, in provincial court.

[14] The Sollevelds’ anticipated funds did not arrive and their counsel removed himself from the record in June 2005.

[15] On July 4, 2005, the Sollevelds re-elected trial by judge and jury, with the then-existing trial dates to be used for a preliminary inquiry.

[16] The preliminary inquiry took place over 29 days between August 16, 2005, and December 1, 2005. There were 23 days of evidence, 1 day lost due to the absence of a translator and 5 days of submissions. The Crown served 120 subpoenas in preparation for the preliminary hearing. The Crown ended up calling 21 witnesses and filing 254 exhibits. Exhibit 2 was Scott McBride’s report; it took up several binders.

[17] On March 10, 2006, the respondents were committed to stand trial.

[18] The respondents first appeared in the Superior Court of Justice on April 21, 2006.

[19] On June 30, 2006, Mr. Solleveld requested a further adjournment to July 28, 2006.

[20] On September 15, 2006, trial dates in the Superior Court were set commencing on July 9, 2007. The trial was subsequently rescheduled to begin on September 10, 2007, with an anticipated completion date of April 10, 2008. Before trial began, the respondents brought a stay application.

[21] On August 27, 2007, the trial judge granted the application and ordered a stay.

THE REASONS FOR STAYING THE PROCEEDINGS

[22] In accordance with the jurisprudence,[^2] the trial judge recognised that there were five factors to be considered when deciding the stay application: (1) the length of the delay; (2) waiver of time periods; (3) the reasons for the delay, including limits on institutional resources and the inherent time requirements of the case; (4) prejudice to the accused; and (5) balancing of the problems that the delay caused for the respondents against the public interest in seeing that the criminal charges are properly disposed of.

Length of Delay

[23] The trial judge found that the period between the laying of the charges and the anticipated culmination of the six-month trial was approximately four years and five months (53 months). Given the length of the delay, he found that it was appropriate to consider whether the respondents’ 11(b) rights had been infringed.

Waiver

[24] The trial judge found that none of the respondents waived their 11(b) rights during the proceedings.

Reasons for the Delay

[25] The trial judge attributed the delays as follows: to the Crown -- 281 days, institutional delay of 668 days, defence-caused delay of 106 days, and inherent delay of 368 days. He viewed the Crown and institutional delay together as having caused a total delay of 949 days or 31.5 months. In his reasons, the trial judge offers some general comments about each type of delay but he made no attempt to analyse the various time periods nor did he explain why he allocated the delay as he did.

Prejudice

[26] The trial judge found that prejudice could be inferred from the length of the delay following arrest. He stated:

This case is now four years old and that length of time breeds failing memories, relocated witnesses, which in turn impacts on trial fairness. Failing memories also includes those memories of the accused innocence and making it more difficult to instruct their counsel and/or defend their cause. This cannot be underestimated, even though there will be documentation to assist the witnesses, time [takes] its toll on all of us, and in this case, four years later and seven years after the events in question is a serious impediment to the accused.

[27] The trial judge concluded that the respondents also suffered actual prejudice. At pp. 10 and 11 of the reasons, he stated:

In terms of actual prejudice, I would characterize the bail terms as restrictive and included, in effect, the closing down of the accused businesses, pending the completion of the trial, and as well, a prohibition against the taking of any employment in matters involving any sort of financial planning or banking. Seeking employment would be almost impossible for persons the age of the accused, and with criminal charges pending against them, it is easy to imagine that any attempts at obtaining employment in the short run would require an explanation to the prospective employer for their unemployment predicament. They would have to alert their prospective employer that they had been charged under the Criminal Code, with fraud.

Anytime the state places strict bail restrictions on a citizen, it ought to be accompanied with an assiduous devotion to a timely trial. Surely the bail restrictions could have been worked through with counsel right from the start to ameliorate the loss of employment, given the need for legal representation and groceries.

[28] He dismissed Mr. Solleveld’s claim that the RCMP publicized the case in a way that prejudiced the public against them.

Balancing

[29] The reasons of the trial judge with respect to balancing are extremely brief. Under the heading “balancing”, the trial judge did nothing more than note that the societal interest in having charges tried increases with the seriousness of the charges. Arguably, however, balancing is also addressed in a later paragraph contained in the section in the reasons entitled “conclusion” (the “Paragraph”). The full text of the Paragraph reads as follows:

At the end of the day, the amount of the delay, the reasons for the delay and the presence of prejudice to the accused arising from that delay, satisfies me that the interests of a timely trial outweigh the societal interest [in] having these charges tried.

THE ISSUES

[30] Pursuant to s. 11(b) of the Charter, an accused person has the right to be brought to trial within a reasonable time. It is the accused’s onus to establish a violation of his or her s. 11(b) right.

[31] The overarching issue in this case is whether the trial judge erred in finding an unreasonable delay and, consequently, ordering a stay of the proceedings. The Crown concedes that the length of the delay warrants inquiry and that there had been no constitutional waiver of the delay. Thus, the specific issues for determination are whether the trial judge erred in his: (1) allocation of the delay, (2) findings of prejudice to the respondents, or (3) balancing of the rights of the accused against the societal interests in having those accused of crimes dealt with fairly.

ALLOCATION OF DELAY

Introductory comments

[32] It will be recalled that the trial judge stated that the Crown and institutional delay accounted for 949 days of delay. It will be further recalled that the trial judge did not explain how he arrived at his allocation of the delay. Instead, he made some general statements about the conduct of the parties and, occasionally, described a specific aspect of the proceedings and how he would treat the time. One example of the latter will suffice. In respect of intake, he allowed six months of time, explaining that a four-year investigation preceded the laying of charges so the intake period should have been shorter. He does not explain the date or event that he views to be the end of the intake period nor does he explain why he chose six months as the appropriate amount of time for intake purposes. He simply says that given the four-year investigation leading up to the laying of the charges, in his view, six months is an appropriate intake period. Further and in any event, he is in error in respect of the duration of the investigation. The trial judge appears to have confused two different investigations. The investigation that underlay the charges in question lasted for a period of one and a half years, not four years.

[33] When allocating delay, it is important that the trial judge give sufficient reasons that the parties and the reviewing court can understand the time that was allocated and the reasons therefor. In the present case, the trial judge did not attempt to go through the time periods nor did he explain how he arrived at his allocation of the delay. Consequently, the reasons do not admit of appropriate appellate review.

[34] The Crown submits that the trial judge failed to properly allocate delay primarily because he did not properly allow for the time requirements of a complicated fraud involving multiple accused. I agree. The five errors made in respect of the time allocations relate to the following: the intake period in the Provincial Court; defence-requested adjournments; the preliminary inquiry to the date of committal; the intake period in the Superior Court; and the time required to set a trial date in the Superior Court. Before turning to these errors, it is useful to recall the principles which inform this area of the law.

Governing Principles

[35] A stay imposed for a violation of s. 11(b) is to be reviewed on a standard of correctness. No deference need be accorded the trial judge’s attribution of the various periods of delay, or his or her ultimate conclusion as to the reasonableness of the delay: see R. v. M. (N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.), at paras. 5-6, and R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), at para. 27.

[36] Institutional or systemic delay starts to run when the parties are ready for trial but the system cannot accommodate them.[^3] To provide guidance on the approximate permissible scope of institutional delay, the Supreme Court in Morin set out the following guidelines: eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice. These are not limitation periods. Rather, they are factors to be weighed in the overall assessment of the reasonableness of the total delay: see R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), at p. 345, aff’d 1997 331 (SCC), [1997] 3 S.C.R. 700.

[37] Institutional delay must be contrasted with the inherent time requirements of a case. The latter concept generally encompasses the time taken at both levels of court to get the case to the point where the parties are ready to set trial dates. It includes the time needed to retain and instruct counsel, conduct bail hearings, undertake administration and paperwork, and comply with disclosure obligations.

[38] Further, the more complicated the case, the greater the inherent time requirements will be. This case is a complex fraud which involves trying multiple individuals. Both these factors have been recognised as increasing inherent time requirements: see R. v. Horgan (2007), 2007 ONCA 869, 165 C.R.R. (2d) 332 (Ont. C.A.), at para. 22, leave to appeal to S.C.C. refused (2008), 2008 2277 (SCC), 166 C.R.R. (2d) 374, and R. v. Satkunananthan (2001), 2001 24061 (ON CA), 152 C.C.C. (3d) 321 (Ont. C.A.), at para. 38. Complex fraud cases typically require substantial preparation time and court time, as a result of having to review large quantities of complicated financial documents, and interview many witnesses, including experts. Trying multiple individuals may significantly extend the time reasonably required to complete the proceedings as there is the need to co-ordinate the schedules of multiple counsel for intake matters, the preliminary hearing and the trial.

[39] Both factors were present in this case. This was a complex investment fraud involving a massive amount of disclosure, over 100 potential witnesses, and numerous co-accused. It was scheduled for a six-month jury trial.

[40] In this case, proceedings have taken place through two levels of court over a span of 46 months (excluding the time anticipated for trial).[^4] It is not necessary to undertake a day-by-day analysis of that period. Rather, I will focus on five periods of time which are, contrary to what I understand the trial judge to have determined, properly attributable to inherent and defence delay.

November 4, 2003, to September 13, 2004 - intake at the Provincial Court (total of 314 days)

[41] The trial judge found that the intake period in the Provincial Court began on November 4, 2003, when the charges were laid, and ended on May 4, 2004, a period of 6 months. I do not agree.

[42] The trial judge’s determination appears to flow in large measure from his view that there had been a four-year investigation prior to the laying of charges on November 4, 2003. This is incorrect. While there had been an earlier investigation of the Sollevelds by the RCMP in London, the investigation that led to charges being laid against the respondents began in the later part of 2002.

[43] The trial judge then used this erroneous view of the pre-charge delay to assess the reasonableness of the post-charge delay. First, he found that given the supposed four-year “head start”, a six-month period of neutral time up to May 4, 2004, was appropriate. Then, in assessing the reasonableness of delay relating to Crown disclosure, he found that “[t]he R.C.M.P. were slow on disclosure, given that they had four years to investigate before laying charges.”

[44] The Crown accepts responsibility for 49 days of delay in this period on account of late disclosure. A pre-trial scheduled for July 21, 2004, did not occur as a result of new disclosure and was rescheduled for September 8, 2004, and again to September 13, 2004. As a result, I attribute 49 days of the delay in this period to the Crown. However, in my view, the remaining 265 days should be treated as inherent delay.

[45] Apart from the 49 days of delay addressed above, the period from November 4, 2003, to September 13, 2004, should be treated as intake. During this period, bail hearings were being co-ordinated, counsel were being retained, and the Crown was producing disclosure and defence counsel were reviewing it. In addition, there were minor delays caused by the then co-accused, Mr. Ahmad and Ms. Jorzak, and their counsel. Considering the activities that took place during this period, as well as the actual length of the second investigation (one and a half years rather than four years), this period of inherent delay is reasonable.

[46] The respondents submit that the second half of this period should be attributed to institutional delay because a judicial pre-trial was being completed. In support of this position, they cite R. v. G. (C.R.) (2005), 2005 32192 (ON CA), 77 O.R. (3d) 308 (C.A.), and R. v. Rego (2005), 2005 40718 (ON CA), 204 O.A.C. 281. I do not agree. While this court has recognised that the delay needed to schedule a judicial pre-trial is properly considered institutional delay, the time the parties require to prepare for and conduct the pre-trial may be an inherent time requirement: see R. v. M. (N.N.) at para. 33. Further, during this period, there were other activities taking place such as additional bail proceedings, consent releases and continuing Crown disclosure. In light of both the need for preparation and the other activities, as I have said, 265 days out of 314 days of this time is properly treated as part of the inherent time requirements.

November 19, 2004, to February 15, 2005 – defence requests for adjournments (total of 88 days)

[47] During proceedings on November 19, 2004, defence counsel for the Sollevelds asked to defer setting a trial date. This was followed by a period of approximately three months during which counsel for the Sollevelds reiterated this request (December 8, January 12, and January 27). It was later revealed that the Sollevelds were awaiting the arrival of resources that would help resolve the case. On each occasion, counsel for Cranston either consented to or did not oppose the requested delays. The Crown similarly consented to the adjournments on account of additional disclosure to be made.

[48] The respondents submit that this delay should be attributed to the Crown for its incomplete disclosure. I do not agree. The pace of disclosure was not ideal in this case. However, in light of the complex nature of the case, the massive amount of disclosure involved, and what has previously been said about the length of the investigation, it is not appropriate to attribute this delay to the Crown. Rather, this period of 88 days should be treated as defence-caused delay; it should count against the Sollevelds and be treated as neutral against Cranston.

August 16, 2005, to March 10, 2006 - the preliminary inquiry to committal (total of 206 days)

[49] The preliminary inquiry began on August 16, 2005. Evidence and submissions were complete on December 1, 2005. On March 10, 2006, the respondents were committed to trial. The trial judge found 176 of those days were institutional delay “due to lack of judges in the Ontario Court.”

[50] There is nothing in the record to suggest that lack of judges caused any delay during the preliminary inquiry and it was an error to so find. The delay arose between the conclusion of evidence and submissions, and the committal. During that period, the preliminary inquiry judge prepared his reasons for committal. It is unreasonable to think that committal in this case could come immediately after the evidence had been called and submissions heard. In light of the complex nature of the fraud and extensive evidence called on the preliminary inquiry, the time taken by the preliminary inquiry judge to prepare his reasons for committal is reasonable.

[51] Consequently, in my view, this entire period of 206 days is properly treated as inherent delay. In reaching this conclusion, I note that the Supreme Court in Morin recognised that a longer time must be allowed for cases that require a preliminary inquiry.[^5]

March 10, 2006, to September 8, 2006 - intake at the Superior Court of Justice (total of 182 days)

[52] Shortly after committal, the Crown filed an indictment in the Superior Court of Justice. The respondents made their first appearance in the Superior Court on April 21, 2006. Defence counsel for Cranston, with the consent of the Crown and without objection from the Sollevelds, asked for an adjournment. On their next appearance, May 19, 2006, defence counsel for Cranston, again with the consent of the Crown and without objection from the Sollevelds, asked for another adjournment to arrange for case management. Defence counsel followed up with a letter on May 24, 2006, to Lofchik J., the Local Administrative Judge, indicating that the case could take up to six months. Lofchik J. wrote back on June 22, 2006, indicating that he would case manage the matter. On the next appearance in assignment court, June 30, 2006, the Crown and counsel for Cranston were ready to set a trial date. The trial judge concluded that the 41-day delay between May 19 and June 30, 2006, was institutional. This conclusion is directly at odds with the definition of inherent delay due to the intake requirements of a case. In my view, the entire period from March 10 to June 30, 2006, should be considered inherent delay as intake in the Superior Court.

[53] During the 70-day period between June 30, 2006, and September 8, 2006, Robert Solleveld repeatedly requested adjournments (June 30, July 28, and August 4) so that he and his wife could “consummate and request legal counsel.” This period of delay should be attributed to the defence; it must count against the Sollevelds and be treated as neutral against Cranston. As of June 30, the Crown made it clear to the court that it was ready to proceed to trial and that it was prepared to set a trial date. It also challenged the Sollevelds’ adjournments, pointing out that Mr. Solleveld had made similar representations in the past which came to nothing and expressing concern about the passage of time. Counsel for Cranston, while indicating he was ready to set a date, made no objection to or comment about these delays. Furthermore, in this period, the Sollevelds failed to appear for a pre-trial scheduled September 6, 2006, adding to the delay.

January 2, 2007, to July 9, 2007 - time required to set trial dates in Superior Court (total of 188 days)

[54] During proceedings on September 15, 2006, the court offered trial dates as early as January 2007. The Crown was unable to accommodate a January trial date because it would conflict with a homicide trial the lead Crown counsel had scheduled on August 17, 2006. Accordingly, the Crown asked to begin the case at the beginning of July 2007. The trial judge found that the 109 days between September 15, 2006, and January 2, 2007, was institutional, and the further six-month delay between January and July was Crown delay.[^6] I do not agree with his assessment of the six-month delay as it fails to adequately take into account the nature of the case, the circumstances that gave rise to the conflict causing the delay, and the relevant jurisprudence.

[55] In my view, this six-month period (188 days) should be treated as inherent delay.

[56] First, neither of the respondents opposed a July trial date. Counsel for Cranston made no complaint or assertion that he wanted an earlier trial. He stated, “I’m available for that, Your Honour. I’m also available earlier in the Year.” The Sollevelds similarly expressed no concern about the date. In fact, Robert Solleveld stated, “We prefer July as well, Your Honour.”

[57] Second, as noted previously, this was a complex fraud case involving a massive amount of evidence. Given the amount of work already conducted, including the conduct of the 29-day preliminary inquiry and the volume and complexity of material deciphered by Crown counsel, it would not be reasonable to expect a new Crown counsel to take over the matter and get up to speed on the file in time for the July trial dates. The view of the trial judge is at odds with the practical reality, recognised in Morin at p. 792, that “counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case.” This position was adopted by this court in R. v. G. (C.R.) at para. 24, and R. v. Allen at p. 348.

[58] Further and importantly, the conflicting dates of the homicide trial had been chosen on August 17, during one of the adjournment periods requested by the Sollevelds to retain counsel.

Conclusion on Allocation of Delay

[59] The period from the charges being laid (November 4, 2003) to the commencement of trial (September 10, 2007) was 46 months. The trial judge attributed 31.5 months of the delay to Crown and institutional delay. For the reasons already given, he erred.

[60] As I have explained, approximately 31 months (929 days) of the delay should be treated as inherent or defence-caused delay which leaves the remaining 15 months as institutional and Crown delay.

[61] What constitutes an acceptable period of systemic or institutional delay will vary depending on the nature and circumstances of each case. After allowing for a reasonable neutral intake period, the permissible range for systemic delay is between 14 and 18 months for matters in the Superior Court of Justice.[^7] The systemic and Crown delay in this case come within the acceptable range.

PREJUDICE

[62] In my view, the trial judge clearly erred in his determination of prejudice, both inferred and actual.

[63] The trial judge erred in inferring prejudice in the circumstances of this case where the actions of the accused belie the suggestion that they were genuinely interested in a speedy trial. The Sollevelds repeatedly delayed setting a trial date and are responsible for significant periods of the delay. Cranston, while purporting to want an early trial, took no steps to push for an early trial. Furthermore, much of the evidence in this case is documentary, thus the concern with failing memories is much diminished. While the trial judge alluded to the fact there was documentation, he failed to recognise or consider its significance in this case.

[64] In any event, the trial judge erred in finding actual prejudice. It will be recalled that he found that the respondents suffered actual prejudice because restrictive bail conditions led to their businesses being closed down and precluded them from finding employment.

[65] In fact, the evidence was that the respondents lost their respective businesses long before and quite independently of the charges, much less as a result of the bail conditions. Cranston voluntarily stopped his business in December 2000 – years before the charges in question were laid -- in order to comply with a cease-trade order issued by the Ontario Securities Commission (“OSC”). Further, on December 12, 2000, the OSC issued a statement of allegations relating to Cranston’s promotion of an offshore debenture program.

[66] The Sollevelds’ business also evaporated before the charges were laid. A letter dated February 24, 2004, written by Robert Solleveld and sent to investors, was tendered on the 11(b) application (the “Letter”). In the Letter, Robert Solleveld stated that in May 2001, he closed his business office and laid off most employees. It will be recalled that the charges against the Sollevelds were laid on November 4, 2003. The Letter also describes events in 2003, before the charges were laid, as being “complete hell” during which time the Sollevelds were “selling off as many assets as possible to meet the legal and other obligations.” Further, Donna McNicholl, a former TCSI employee, testified at the preliminary hearing that TCSI was evicted from its premises in mid to late April 2001 for failing to pay rent.

[67] As for the suggestion that the Sollevelds suffered financial problems as a result of delay, again the record does not support such a finding. The Sollevelds approached the Crown for a bail variation to further mortgage their home, months after they had already lost the home through a power of sale and only days before their possessions were going to auction. In any event, there was no equity left in the home to mortgage. And, despite the bail condition prohibiting the Sollevelds from disposing of or dissipating any real or personal property, they put large additional mortgages on their home not long after being released on bail. While Mr. Solleveld acknowledged receiving the mortgage money, it is unclear what happened to those funds.

[68] The trial judge also erred in assuming that the respondents’ inability to find employment was a result of the strict bail conditions. That determination is not borne out on the record.

[69] Cranston’s inability to find employment was significantly impacted by separate charges of tax evasion and, as set out above, the fact that he was under investigation by the OSC. In addition to the cease-trade order issued by the OSC against Cranston in 2000, Cranston was charged with tax evasion in early 2004. He was convicted of those charges and sentenced in January 2007. He served 5 weeks of that sentence before being released on bail pending appeal. The 2000 court order served by the OSC required Cranston to stop conducting business as a financial planner.

[70] Moreover, the record does not support a determination that Cranston’s inability to find employment flowed from the bail conditions. The Crown consented to the bail variations he requested in relation to the job offer he received from Vydexa. While Cranston offered a variety of different explanations for why he did not get the job with Vydexa, he indicated that it may have been that there were other candidates who were more available than he.

[71] The only other request for a bail variation that the Crown received was in relation to Cranston’s job offer from a company called Multi-Card. The Crown did not consent because one of the principals of Multi-Card had been charged with fraudulent activity. Cranston did not pursue his request by means of a bail review.

[72] There is no evidence on the record to support a finding that the Sollevelds were unable to find employment as a result of the bail conditions. The record suggests that any inability to find employment arose either from events that predate the charges or as a result of the charges themselves. Of the events that predate the charges, I make note of only two. First, there is Robert Solleveld’s prior bankruptcy. Second, in the Letter, Robert Solleveld states that he pleaded guilty in October 2002 to assisting people in tax evasions and paid a fine of $133,000 rather than going to jail.

[73] In the circumstances, the trial judge erred in finding that the prejudice flowed from the delay. As prejudice is not inferred and was not otherwise proven, the basis for enforcement of the individual right protected by s. 11(b) was “seriously undermined”.[^8]

BALANCING

[74] In that part of the reasons entitled “balancing”, the trial judge correctly stated that there is a societal interest in seeing that criminal charges are properly disposed of and that this interest is to be balanced against the prejudice caused to the respondents by the delay. However, he makes no attempt to undertake such a balancing.

[75] Even if it is assumed that the Paragraph is meant to amount to a balancing, it fails as it is simply conclusory. It contains no analysis or reasoning. The Paragraph amounts to no more than saying that delay plus prejudice outweighs the societal interest in seeing that the charges are properly disposed of. In contrast to the consideration shown for prejudice to the respondents flowing from the delay, no mention is made of the seriousness of the charges and the harm that the investors had suffered.

[76] While this case took a long time to get to trial, much of the responsibility for the delay is a result of the actions of the Sollevelds. When that fact is properly taken into account, together with the inherent time requirements in a case such as this, the minimal prejudice suffered by the respondents and the seriousness of the charges, the delay is not unreasonable. Certainly, the delay does not outweigh the considerable prejudice to society’s interest caused by a stay of these very serious charges.

DISPOSITION

[77] Accordingly, I would allow the appeal, set aside the stay of proceedings and order that the matter proceed to trial. It goes without saying that the earliest possible trial date should be set.

RELEASED: November 6, 2008 (“E.A.C.”)

“E.E. Gillese J.A.”

“I agree. E.A. Cronk J.A.”

“I agree David Watt J.A.”

[^1]: The trial judge’s reasons refer to November 5, 2003, as the date that the charges were laid. However, all other sources indicate the date was November 4, 2003.

[^2]: R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.

[^3]: Morin at pp. 794-95.

[^4]: The trial judge found it to be a period of 47.4 months.

[^5]: Morin at p. 793.

[^6]: The trial judge erroneously determined the six-month period to be made up of 108 days.

[^7]: See R. v. Herrington (2003), 2003 48074 (ON CA), 68 O.R. (3d) 532, at para. 13, and M. (N.N.) at para. 69, where this court accepted 14 to 18 months as the permissible range for matters that proceed through both levels of court.

[^8]: Morin at p. 801.