Her Majesty the Queen v. Witen*
[Indexed as: R. v. Witen]
Ontario Reports
Court of Appeal for Ontario,
Doherty, Pepall and Tulloch JJ.A.
October 9, 2014
122 O.R. (3d) 782 | 2014 ONCA 694
Case Summary
Charter of Rights and Freedoms — Search and seizure — Trial judge not erring in finding that documents seized from accused's home and office fell within scope of search warrant and in any event were seizable under s. 489(1)(c) of Code — Accused's rights under s. 8 of Charter not violated — Canadian Charter of Rights and Freedoms, s. 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 489(1)(c).
Charter of Rights and Freedoms — Trial within reasonable time — Accused charged in November 2005 with offence under Income Tax Act — Crown withdrawing that charge in June 2007 and charging accused with two counts of fraud — Entire time between November 2005 and June 2007 not counting against Crown in s. 11(b) analysis as Crown did not lay income tax charge to "hold" accused pending completion of fraud investigation — Two-year delay resulting from mistrial caused by trial judge's illness being neutral — Accused not suffering any prejudice to his liberty or fair trial interests — Total delay of 65 months from laying of Income Tax Act charge to conviction after second trial not being unreasonable — Canadian Charter of Rights and Freedoms, s. 11(b).
Criminal law — Fraud — Sentence — Accused tax preparer convicted of two counts of fraud involving assisting clients in making false expense claims in tax returns — Fraud taking place over five years and costing public purse more than $1 million — Sentence of three years' imprisonment and fine of $448,000 affirmed on appeal.
The accused, a tax preparer, was originally charged with an offence under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) in November 2005. The Crown withdrew that charge in June 2007 and charged the accused with two counts of fraud over $5,000. The accused allegedly assisted clients in making false expense claims in their tax returns. The first trial ended in a mistrial due to the trial judge's illness. The accused was convicted on both counts at his second trial. The trial judge found that the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms were not violated when a [page783] search warrant was executed at his home and office, and that the 65-month delay between the laying of the Income Tax Act charge and the completion of the second trial did not violate the accused's right under s. 11(b) of the Charter to be tried within a reasonable time. The accused was sentenced to three years' imprisonment and a fine of $448,000. He appealed his conviction and sentence.
Held, the appeal should be dismissed.
The trial judge did not err in declining to attribute to the Crown the 19-month period between the laying of the Income Tax Act charge and the laying of the fraud charges. There was no indication that the Crown laid the Income Tax Act charge only as a device to "hold" the accused pending the completion of the fraud investigation. There is no evidence that the fact that the authorities continued to investigate the accused's conduct after the Income Tax Act charges were laid proved that the Crown never intended to proceed with those charges. Most, if not all, of the 19 months should be assigned to the inherent time requirements of the case. The fact that disclosure was made under the Income Tax Act charge did not mean that it should have taken the Crown only a very brief time to make whatever additional disclosure was required by the new charges. The new charges greatly expanded the material to be disclosed. The two-year delay caused by the trial judge's illness and the mistrial was neutral in the s. 11(b) analysis. The accused did not suffer any prejudice to his liberty or fair trial interests. The accused's rights under s. 11(b) of the Charter were not violated.
The trial judge did not err in finding that the documents seized from the accused's home and office fell within the scope of the search warrant and that, in any event, the challenged documents were seizable under s. 489(1)(c) of the Criminal Code. There was an ample basis for concluding that the person seizing the material believed on reasonable grounds that the seized documents would afford evidence in respect of the commission of criminal frauds. Even if some of the documents were seized in violation of s. 8, there is no basis to exclude them pursuant to s. 24(2) of the Charter.
The frauds were committed over a period of about five years and cost the public purse more than $1 million. The accused used his expertise to undermine the efficacy of the self-reporting income tax system. The sentence was well within the accepted range.
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 8, 11(b), 24(2)
Criminal Code, R.S.C. 1985, c. C-46, s. 489 [as am.], (1)(c)
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) [as am.]
APPEAL by the accused from the convictions entered on August 29, 2011 and from the sentence imposed by Hambly J., [2012] O.J. No. 3226, 2012 ONSC 4151 (S.C.J.).
James Lockyer and Richard Posner, for appellant.
Ivan S. Bloom, Q.C., Lisa Csele and Sabrina Montefiore, for respondent. [page784]
[1] Endorsement BY THE COURT: -- The appellant, a tax preparer, was convicted of two counts of fraud. Each count alleged that the appellant helped clients make false expense claims in their tax returns. The frauds cost the public purse in excess of $1 million. The appellant received a jail sentence of three years and a fine of $448,000. He appeals his conviction and sentence.
[2] At trial, the appellant unsuccessfully moved for a stay, claiming that his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed. He then sought to exclude certain documents from evidence under s. 24(2) of the Charter, claiming that the authorities had seized the documents from his office and home in violation of his rights under s. 8 of the Charter. The trial judge dismissed the motions.
[3] The trial proceeded on the Crown's unchallenged statement of facts. The facts fully justify the convictions.
[4] On appeal, the appellant renews his s. 11(b) and s. 8 arguments. He also submits that the trial judge should have imposed a conditional sentence. We would not give effect to any of these arguments.
The Section 11(b) Claim
[5] The trial proceedings in this matter have a long and protracted history. For the purposes of the appeal, we will assume that counsel for both the appellant and the Crown are correct in identifying the relevant s. 11(b) period as between November 2005 (when the first charges were laid) and late March 2011 (the anticipated start of the second trial). On its face, 65 months is an excessive length of time to bring a case to trial and calls for a rigorous s. 11(b) analysis.
[6] We do not propose to review each of the court appearances and examine each of the periods addressed by the trial judge. Nor is there any need to restate well-settled law. We will focus on the periods the appellant emphasized in his submissions.
November 5, 2005 to June 20, 2007
[7] The appellant was initially charged with offences under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). Those charges arose out of tax returns the appellant prepared for two individuals and their company, Cantec Manufacturing Inc. In June 2007, the Crown withdrew the income tax charges and charged the appellant with five counts of fraud. The appellant was eventually convicted of two of those counts. The first charge was an [page785] expanded version of the income tax charges and involved many of the appellant's clients. The second charge, referred to as the "false childcare expenses" charge, was factually distinct from the income tax charges.
[8] The appellant argues that the trial judge should have counted nearly the entire November 5, 2005 to June 20, 2007 period (19.5 months) against the Crown in his s. 11(b) analysis. Counsel submits that the Crown had no intention of proceeding against the appellant on the Income Tax Act charges but laid those charges only to "hold" the appellant pending the completion of its investigation and the laying of the fraud charges.
[9] The evidence offers no support for this submission. The few references in the transcript on which the appellant relies do no more than indicate that, when the initial Income Tax Act charges were laid, a very broad investigation into the appellant's conduct of his tax-related business was underway. To jump from a finding that the authorities continued to investigate the appellant to the conclusion that the Crown never intended to prosecute the initial charges is rank speculation.
[10] Like the trial judge, we would assign most, if not all, of the 19 months to the case's inherent time requirements, the defence's conduct, and mutual requests for adjournments to pursue resolution discussions. We find no support for the appellant's contention that the Crown's conflict of interest motion with respect to counsel for his co-accused somehow delayed the appellant's case. There is no reason to think that the case would have made any faster progress had the Crown abandoned its ultimately needless conflict of interest motion. We note that the appellant's first counsel removed himself from the record around April 2006 and new counsel did not formally appear on the record until August 2006. In August, new counsel indicated he needed time to review the disclosures which consisted of approximately 20,000 documents. No trial dates were going to be set until counsel had the opportunity to review the disclosure whether or not the Crown proceeded with its conflict of interest motion.
June 20, 2007 to July 28, 2008
[11] The trial judge attributed four and a half months of this 13-month period to the Crown. The appellant submits that the trial judge should have attributed eight and a half months of the delay to the Crown. The appellant contends that given the prior charges under the Income Tax Act and the lengthy investigation undertaken by the authorities, it should not have taken the [page786] Crown more than a very short time to make whatever disclosure the new charges required.
[12] We begin with the observation that an allocation of an additional four months to the Crown would not affect the ultimate resolution of the s. 11(b) claim. In any event, we do not agree with the appellant's characterization of the new charges' impact on the Crown's disclosure obligations. The new charges greatly expanded the material to be disclosed. The investigation also triggered certain third party reassessments, leading to third party production of documents that were, in some cases, disclosable. This process necessarily took some time. The four months allowed by the trial judge for the inherent time requirements of the case were well within the appropriate range.
[13] In a related submission, the appellant argues that the trial judge wrongly found that the defence waived four months of this period. The appellant submits that the waiver extended to only one month. Crown counsel accepts this interpretation but argues that some of the remaining three months should fall under the inherent time requirements because of the added disclosure obligations. We agree. In any event, a three-month adjustment in the s. 11(b) arithmetic would have no effect on the outcome.
March 23, 2009 to March 28, 2011
[14] The appellant was committed for trial in March 2009 and first appeared in the Superior Court on April 24, 2009. His second trial was to begin in March 2011. This two-year period was not a focus of the appellant's s. 11(b) submissions. We refer to it because it is both a significant amount of the overall period and is explained by an unusual and unfortunate event.
[15] The appellant's trial began in Superior Court on October 13, 2009 with pre-trial motions and proceeded intermittently through conviction toward sentencing until September 7, 2010. On that day, the senior regional judge declared a mistrial on account of the trial judge's illness. He also determined that a new trial, rather than the appointment of another judge, would best serve the interests of justice. No one takes issue with that ruling and everyone accepts that the period lost on account of the trial judge's illness and the need to effectively redo the trial must be neutral in the s. 11(b) analysis. There is some dispute as to the calculation of that period. We think it runs from the start of motions in the first trial on October 13, 2009 to the declaration of mistrial on September 7, 2010, about 13 months later. [page787]
Prejudice
[16] The appellant led evidence that his wife suffers from Parkinson's disease and that in the years during which these matters were before the courts, she relied more and more on the appellant to assist her in day-to-day living. Mrs. Witen filed an affidavit outlining the impact of the delay on her and the appellant.
[17] The trial judge rejected the claim that the impact of the delay on the appellant's family life and his and his wife's ability to cope with her worsening disability could constitute prejudice. This seems a somewhat narrow view of the concept of prejudice. Coping with serious health problems, like Parkinson's, is difficult in any circumstance. One could accept that the difficulty is exacerbated when serious criminal charges hang over the head of the able-bodied person in the relationship for a prolonged period. That said, the prejudice obviously ranks below interference with an individual's liberty or the right to a fair trial. Even accepting some prejudice from the delay's impact on family well-being, that prejudice does not alter the s. 11(b) result.
The Section 8 Claim
[18] The authorities executed two sets of search warrants, the first in February 2004 and the second in February 2006. In both cases, the appellant's home and office were searched.
[19] As we understand the appellant's position, he challenges the constitutionality of the 2004 search. He submits that while the search warrants were properly issued, the authorities seized documents that were neither within the description of the documents to be seized under the warrant nor subject to seizure under the expanded seizure powers in s. 489 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant does not directly attack the constitutionality of the 2006 seizures but does argue that the close connection between the 2006 seizures and the unconstitutionally obtained documents in the 2004 seizures renders the product of the 2006 seizure inadmissible under s. 24(2) of the Charter.
[20] The court did not require Crown submissions on the seizure-related issues. We will address the appellant's arguments only briefly.
[21] The trial judge ultimately concluded that the documents seized from the appellant's home and office fell within the warrant's description of the documents to be seized. He also determined that where a book (for example, a deposit book) contained [page788] both documents described in the warrant and documents not described in the warrant, the authorities were entitled to seize the entire book.
[22] By way of alternative finding, the trial judge went on to conclude that even if the challenged documents did not fall within the language in the warrant, they were seizable under s. 489(1)(c) of the Criminal Code. That provision allows a person executing a warrant to seize "any thing that the person believes on reasonable grounds . . . will afford evidence in respect of an offence against this or any other Act of Parliament". He did, however, find that the so-called "plain view" doctrine could not justify the seizures.
[23] Section 489(1)(c) speaks to any offence and is not limited to the offences for which the warrant was granted. It requires belief "on reasonable grounds" that the seized material "will afford evidence in respect of an offence". We do not read the trial judge's reference to "potential relevance" as setting some lower standard. The trial record provided ample basis to conclude that the person seizing the material believed on reasonable grounds that the seized documents would afford evidence of a criminal fraud.
[24] As we are satisfied that the material was properly seized under s. 489(1)(c), we need not consider whether it also fell within the language of the warrant. Nor need we address the applicability of the "plain view" doctrine. Finally, even if some of the documents could be said to fall outside of s. 489(1)(c)'s grant, we see no case for excluding any of the documents under s. 24(2) of the Charter. The seized documents were properly admitted.
The Sentence Appeal
[25] The sentence is well within the accepted range of sentence for this kind of crime. This was a serious fraud perpetrated over a lengthy period against the public purse by an individual who used his expertise to undermine the efficacy of the self-reporting income tax system. We would not interfere with the sentence.
Appeal dismissed.
- Vous trouverez la traduction française à la p. 789, post.
End of Document