Court of Appeal for Ontario

Date: 2019-05-22 Docket: C64676

Justices: Doherty, Benotto and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Michael Majeed Appellant

Counsel

Michael Dineen, for the appellant

Jeremy D. Tatum, for the respondent

Heard and released orally: May 16, 2019

On appeal from the conviction entered by Justice S. Nakatsuru of the Superior Court of Justice, dated October 5, 2017, and the sentence imposed on December 15, 2017.

Reasons for Decision

The Conviction Appeal

[1] There is one ground of appeal. The appellant submits that the trial judge erred in holding that the appellant had failed to establish a breach of s. 11(b) of the Charter, even though this case was before the courts for a significant period of time. We disagree with this submission.

[2] The trial judge correctly and concisely outlined the approach to s. 11(b) claims mandated by Jordan: see R. v. Majeed, 2017 ONSC 3554. In applying the Jordan analysis, the trial judge calculated the net delay at 50 months, some 20 months above the Jordan cap (reasons, para. 13). The appellant does not take issue with this calculation.

[3] The trial judge found that the Crown had established three specific events that qualified as exceptional circumstances and which, taken together, justified a 10-month delay in the completion of the preliminary inquiry. Taking that 10 months into account, the delay for s. 11(b) purposes was just under 40 months, still 10 months over the Jordan cap.

[4] The trial judge next considered, and accepted, the Crown's submission that the complexity of the prosecution constituted an exceptional circumstance. In reaching that conclusion, the trial judge considered not only the complexity of the case in terms of the number of accused, the number of witnesses, the nature of the evidence, and the number of issues, but also took into account the steps taken by the prosecution to properly manage that complexity and mitigate any delay caused by it (see reasons, paras. 30-47).

[5] The trial judge accepted and relied on the unchallenged affidavit of the lead investigator. He described the explanation proffered in the affidavit for the progress of the prosecution as "detailed and thoughtful": reasons, para. 48. The trial judge ultimately concluded:

I find that the Crown made reasonable efforts to manage this complex case. While I agree it is the Crown who drives the prosecution, the Crown developed and organized a reasonable plan to try and get to the destination, the completion of the trial, by the most direct and quickest route possible. While there will always be unexpected obstacles to overcome and decisions that with reflection the Crown may have wanted to re-visit, the Crown's response to the particular complexity of this case while perhaps not perfect was reasonable and acceptable within the meaning of a s. 11(b) analysis.

[6] The trial judge addressed the defence submission that, although the prosecution did have a plan to manage the prosecution, that plan came too late and was implemented after too much delay (reasons, paras. 50-52). The trial judge was concerned by this submission, but ultimately decided that the steps taken to address the complexity of the case were sufficiently timely in all of the circumstances.

[7] As is hopefully apparent from the brief summary above, the s. 11(b) analysis required in this case demanded extensive fact-finding by the trial judge and an appreciation of how the criminal process works, not only in the Superior Court but in the Ontario Court of Justice. The trial judge was well positioned to do both. We defer to his assessments, absent palpable and overriding error. We find none.

[8] The appellant focuses on two aspects of the s. 11(b) analysis. He submits that the trial judge erred in accepting that the delay caused by the last-minute replacement of the preliminary inquiry judge who had become ill was justified as an exceptional circumstance for the purposes of the Jordan analysis. The appellant accepts that some delay was justified in that one could not expect that the replacement judge would be available for all 26 days that had been scheduled for the preliminary. The appellant submits, however, that the unavailability of the replacement judge for 8 of those 26 days went beyond what could be viewed as reasonable and resulted in a delay of about four months.

[9] The trial judge was no doubt very familiar with the way matters are scheduled in the Ontario Court of Justice. Ontario Court of Justice judges have ongoing matters that are scheduled from time-to-time, sometimes well in advance. Neither party saw fit to adduce any evidence on the question of whether the replacement judge's unavailability for 8 out of 26 days should be considered normal, abnormal or something in between. The trial judge was left to his own experience and understanding of the way the process operates and can reasonably be expected to operate. We cannot say he was wrong in failing to parse the delay flowing from the replacement of the preliminary inquiry judge in the manner now urged by the appellant. We would not give effect to that ground of appeal.

[10] The appellant's second argument, that the trial judge was wrong in treating the complexity of the case as an exceptional circumstance for the purposes of the Jordan analysis, also engages factual considerations. More specifically, the appellant argues that while the prosecution was admittedly complex and the Crown admittedly took steps to address the management of the prosecution, the Crown failed to act quickly enough to prepare and implement a litigation plan that would address and mitigate delays flowing from the complexity.

[11] In our view, whether the Crown acted quickly and effectively enough was the kind of factual determination that lies at the heart of the trial judge's fact-finding role. We see no reason to interfere with his conclusion in that regard. This ground of appeal must also be rejected.

[12] The trial judge went on to consider whether the transitional exceptional circumstance could also justify the delay for the purposes of s. 11(b). He held that it could. In light of our conclusion that the motion was properly dismissed without regard to the transitional exceptional circumstance argument, we need not consider that part of the trial judge's analysis.

[13] The conviction appeal is dismissed.

The Sentence Appeal

[14] Counsel for the appellant acknowledges, and we think properly so, that the sentence imposed was within the range of sentences recognized by this court as appropriate for large-scale criminal frauds. Counsel submits, however, that the trial judge made a factual error in respect of the timing of certain professional accreditations obtained by the appellant. Counsel points out that these credentials were obtained after the fraud and that the trial judge erroneously found that they were used in the commission of the fraud. The trial judge went on to treat this as an aggravating factor.

[15] It would appear that the trial judge made the factual error identified by counsel. However, that error was not material to the determination of the ultimate sentence. These were serious frauds, ending only with the arrest of the appellant and others. The sentence was fit and we would not interfere. Leave to appeal sentence is granted and the appeal is dismissed.

"Doherty J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."