COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allison, 2022 ONCA 329

DATE: 20220426

DOCKET: C66655

Feldman, Roberts and Favreau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Glen Allison

Appellant

Brian Eberdt and Thilo Niclas Menzel, for the appellant

Samuel G. Walker, for the respondent

Heard: March 14, 2022, by video conference

On appeal from the conviction entered on January 31, 2018, and the sentence imposed on March 29, 2018, by Justice David S. Rose of the Ontario Court of Justice, with reasons reported at 2018 ONCJ 64 and 2018 ONCJ 209.

Favreau J.A.:

[1] The appellant, Richard Glen Allison, appeals his convictions for fraud‑related offences. He argues that the trial judge erred in dismissing his s. 11(b) Charter application prior to trial and in refusing to allow him to make a second s. 11(b) Charter application after the trial was completed, but before sentencing.

[2] The appellant also originally sought to appeal his sentence but advised at the beginning of the hearing that he was abandoning that ground of appeal.

[3] At the conclusion of the hearing, the parties were advised that the appeal was dismissed with reasons to follow. These are the reasons.

BACKGROUND

[4] Given that this appeal focuses on delay issues pursuant to s. 11(b) of the Charter, it is not necessary to review the facts giving rise to the fraud-related convictions. Rather, this background section provides an overview of the proceedings.

(1) From the Charge to the Scheduling of Trial

[5] The appellant was arrested on October 17, 2014, and the information laying charges against him was sworn on December 9, 2014.

[6] The appellant’s first appearance was on December 18, 2014. At that time, the Crown provided initial disclosure to the appellant.

[7] From at least March 5, 2015, to September 16, 2015, the appellant was represented by counsel, Robb MacDonald. There were a few appearances and a judicial pre-trial in that time period. On September 16, 2015, Mr. MacDonald was removed as counsel of record with the consent of the appellant.

[8] From September 16, 2015, to August 2016, the appellant remained unrepresented by counsel. During that time period, there were several appearances where the appellant advised that he was still looking for a lawyer and requested adjournments to allow him to retain counsel. On several of these appearances, the appellant asked for lengthier adjournments than accorded by the court, including a request for “as long an adjournment as the court would permit”. On at least two occasions, he also advised the court that he was experiencing health issues.

[9] At an appearance on March 11, 2016, the court refused the appellant’s request for more time, and set dates for a four-day trial from January 17 to 20, 2017.

[10] The appellant remained unrepresented by counsel until August 8, 2016, at which point he retained Norm Stanford. The following day, Mr. Stanford attended court and requested that the trial dates be vacated, explaining that his representation of the appellant was contingent on the trial dates being adjourned to dates when he would be available. The trial dates were not vacated at that point.

[11] The parties attended a judicial pre-trial on September 20, 2016, which was adjourned to November 1, 2016. On September 20, 2016, Mr. Stanford also notified the Crown that there was missing disclosure.

[12] On November 1, 2016, Mr. Stanford was ill and could not attend in person but advised that there was “significant” outstanding disclosure. The judicial pre‑trial was adjourned to November 24, 2016, and the Crown provided the outstanding disclosure in advance of that date.

[13] At the judicial pre-trial on November 24, 2016, the Crown confirmed that disclosure was complete, and the court vacated the January 2017 trial dates to accommodate Mr. Stanford’s schedule.

[14] On January 13, 2017, the court scheduled new trial dates from November 14 to 17, 2017. In addition, the court scheduled the appellant’s s. 11(b) Charter application for May 8, 2017.

(2) The Pre-Trial s. 11(b) Charter Application

[15] The s. 11(b) Charter application was heard as scheduled on May 8, 2017, by Johnston J. The application judge dismissed the application in oral reasons delivered on July 11, 2017.

[16] In her reasons, the application judge calculated the total delay from the date when the information was sworn, December 9, 2014, to the anticipated last day of trial, November 17, 2017. This amounted to a total delay of 2 years, 11 months and 8 days.

[17] From this time period, the application judge deducted the period from January 20, 2017, to November 17, 2017, as defence delay because the appellant explicitly waived this period due to Mr. Stanford’s unavailability for the trial dates originally set to begin in January 2017.

[18] After reviewing the history of the proceedings in detail and setting out the applicable legal principles from R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the application judge went on to deduct three time periods as defence delay.

[19] The first period the application judge deducted as defence delay was from May 8, 2015, to June 17, 2015. This was due to an adjournment requested by an agent acting for the appellant’s previous counsel, Mr. MacDonald. The application judge found that this time period of a quarter of one month was to be deducted as defence delay as no explanation was provided for the adjournment request.

[20] The second period the application judge deducted as defence delay was from July 22, 2015, to August 12, 2015. This was based on the unavailability of Mr. MacDonald for a pre-trial date that could have taken place as early as July 22, 2015, but that was scheduled for August 12, 2015. This was a period of approximately three weeks.

[21] Third, the application judge deducted the period from September 16, 2015, to March 11, 2016, which is the period from the end of Mr. MacDonald’s representation to the appearance when the court set the January 2017 trial dates. In deducting this period of time as defence delay, the application judge rejected the appellant’s argument that disclosure was incomplete during this time period and that it should therefore not have been considered as defence delay.

[22] Having deducted these three time periods as defence delay, the application judge found that the net delay fell below the applicable 18-month Jordan ceiling for matters tried in the Ontario Court of Justice. The application judge stated that there were other periods that could be counted as defence delay, such as a “time period near the beginning of the process where [the appellant] changed counsel”. However, she held that it was not necessary to calculate and deduct any additional defence delay given that she had already concluded that the net delay was below 18 months. In reaching this conclusion, the application judge noted that “[a]s has been properly conceded by the defence, in my view, sustained efforts to advance the case were not made by [the appellant]”.

[23] Finally, the application judge held that, even if she was wrong in her calculation of net delay, she was satisfied that the transitional exceptional circumstance outlined in Jordan applied in this case. In doing so, she reasoned that “the total delay under the [R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771] guidelines may have been somewhat exceeded”, but this was a “serious case of fraud” taking place “in a very busy jurisdiction” such that the delay was “not offensive under the circumstances as they existed in [the] region at the time”.

[24] The application judge also noted that the appellant did not express concerns about the proceedings moving too slowly and even “expressed his displeasure” when he was denied the full time he requested for certain adjournments. She also observed that the appellant retained a trial lawyer knowing that he was not available for the original trial dates.

(3) The Trial and Pre-Sentencing s. 11(b) Charter Application

[25] The appellant’s trial began as scheduled on November 14, 2017, before Rose J. The trial was initially scheduled to be completed in four days but, by the fourth day of trial, it was apparent that more trial days were required. The court scheduled additional trial days for January 12, 15 and 18, 2018. Closing submissions did not conclude until January 26, 2018.

[26] From mid-December 2017 until the end of trial, the appellant’s counsel indicated several times that he intended to bring another s. 11(b) Charter application but expressed concerns over the cost of ordering the necessary transcripts. In response, the trial judge advised that he would not schedule the application until it was perfected.

[27] On January 31, 2018, the trial judge found the appellant guilty on four fraud‑related charges. He later stayed one of these convictions pursuant to the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The matter was adjourned until March 29, 2018, for sentencing.

[28] Before the sentencing hearing, on March 23, 2018, the appellant’s counsel asked the court to adjourn the sentencing hearing and to schedule the s. 11(b) application. At that point, the appellant had still not ordered the transcripts, but his counsel advised that he expected to have the necessary funds from the appellant shortly.

[29] The trial judge refused to adjourn the sentencing hearing for the purpose of scheduling the application, stating that the appellant had not moved diligently with his renewed s. 11(b) application. The trial judge also expressed his concern that the proposed adjournment effectively had “no end in sight”; given that the appellant had not yet ordered the transcripts, the court could not determine a specific point in time when the s. 11(b) application would be perfected and ready to be argued.

[30] On March 29, 2018, the trial judge imposed a custodial sentence of 2 years less a day followed by 3 years’ probation. The sentence also included a restitution order in the amount of $342,447.59.

DISCUSSION

[31] The appellant challenges the dismissal of his s. 11(b) Charter application and the trial judge’s refusal to adjourn the sentencing hearing and schedule a second s. 11(b) application. The appellant advised at the beginning of the hearing that he was abandoning his sentence appeal.

(1) Dismissal of the Pre-Trial s. 11(b) Charter Application

[32] The appellant argues that the application judge made the three following errors in dismissing the s. 11(b) application:

a) In calculating the total delay, the start date should have been the date of the arrest rather than the date the information was sworn;

b) Defence delay should not have been calculated for the period of time during which the Crown failed to make full disclosure; and

c) Defence delay should not be attributed to the period of time when the officer in charge’s notes show that an earlier trial date was available.

[33] As held in R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, the standard of review on an appeal from a Jordan decision requires that deference be accorded to the application judge’s findings of fact, whereas the characterization of periods of delay and the ultimate decision on whether there was unreasonable delay are to be decided on a standard of correctness.

[34] As discussed below, the application judge did not commit any reversible errors in her decision dismissing the appellant’s s. 11(b) application. Accordingly, this ground of appeal is rejected.

(a) The start date for calculating delay is the date of the charge

[35] The appellant argues that the application judge should have used the date of his arrest rather than the date the information was sworn as the start date for calculating the total delay. This was a seven-week period.

[36] In making this argument, the appellant relies on a number of lower court decisions where courts have used this approach when there has been a significant delay between the date of the arrest and the date the information was sworn: R. v. Gleiser, 2017 ONSC 2858, at para. 18; R. v. Albadry, 2018 ONCJ 114, at para. 9; R. v. Bolé, 2019 ONCJ 141, at paras. 22-24; R. v. Gill, 2020 ONCJ 124, at paras. 24-30; R. v. Elakrat, 2020 ONCJ 343, at para. 14; and R. v. Creglia, 2018 ONCJ 262, at fn. 2.

[37] The appellant argues that this approach is consistent with s. 505 of the Criminal Code, R.S.C., 1985 c. C-46, which requires that “an information relating to the offence alleged to have been committed by the accused … shall be laid before a justice of the peace as soon as practicable” [emphasis added] after a notice of appearance has been issued to an accused or an accused has been released from custody.

[38] He also argues that this proposed approach is more consistent with the principles set out in Jordan. He proposes that the date of the arrest should not be the start date in all cases but that, if an accused raises concerns about a delay between the date of arrest and the date the information is sworn, the Crown should have to demonstrate that the delay was reasonable in the circumstances of the case. He argues that, in this case, there does not appear to be a reasonable explanation for the delay.

[39] I reject this argument for four reasons.

[40] First, this argument was not made in the court below: Kaiman v. Graham, 2009 ONCA 77 at para. 18.

[41] Second, despite the lower court decisions cited by the appellant, there is binding authority from the Supreme Court of Canada that addresses this point directly. In R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, the majority of the Supreme Court relied on the text of s. 11(b) of the Charter, which states that “any person charged with an offence … has the right to be tried within a reasonable time” [emphasis added], to hold that the calculation of delay starts from the date of the charge rather than the date of the arrest.

[42] Third, in Jordan, the Supreme Court could have revisited this issue in setting the framework for calculating delay but did not do so. Instead, the Court affirmed, at paras. 47-49, that the time for calculating delay runs from “the charge to the actual or anticipated end of trial” [emphasis added]. As noted by Code J. in R. v. Gandhi, 2016 ONSC 5612, at para. 4, “[a]lthough the majority [in Jordan] changed fundamental aspects of the prior s. 11(b) framework, there was no indication that the Court wished to alter the longstanding principle that s. 11(b) delay begins to run from the swearing of the Information”.

[43] Fourth, since Jordan, this court has explicitly followed Kalanj in holding that, for the purposes of calculating delay on a s. 11(b) Charter application, time starts to run from the date of the charge and not the date of the arrest. Most recently, in R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 55, Trotter J.A. cited R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 22, which was decided before Jordan, to emphasize that “for s. 11(b) purposes, ‘[t]he period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. In this context, ‘charge’ means the date on which an information is sworn or an indictment is preferred’”.

(b) The Crown’s incomplete disclosure did not contribute to delay

[44] The appellant argues that the application judge should not have found any defence delay before November 24, 2016, because there was extensive disclosure missing until that point. I disagree.

[45] When addressing this issue, the application judge found that there was no causal connection between the outstanding disclosure and the delay of the trial. In my view, her decision on this issue is consistent with the law and supported by the record.

[46] In R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161, at para. 47, this court stated that “the Crown is not obliged to disclose every last bit of evidence before a trial date is set”. The application judge relied on this proposition to infer that incomplete disclosure on its own does not preclude the parties and the court from moving forward with the proceedings and scheduling the trial. Instead, there must be some causal connection between the incomplete disclosure and the delay.

[47] In this case, the application judge found as a fact that the delay in disclosure did not have any impact on any steps in the proceedings or the scheduling of the trial. The application judge’s approach is consistent with other decisions of this court and below: R. v. M. (N.N.), (2006) 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 37; R. v. Schertzer, 2009 ONCA 742, at paras. 2 and 93-94; R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 51-53; R. v. Hanan, 2022 ONCA 229, at para. 44; and R. v. Lahiry, 2011 ONSC 6780, at para. 114.

[48] In finding that the incomplete disclosure did not delay the trial, the application judge considered what took place during the relevant time period. She noted that the Crown gave the appellant some disclosure at the first appearance. She also observed that the appellant’s first lawyer, Mr. MacDonald, participated in a judicial pre-trial and other proceedings, and never raised the issue of missing disclosure or made complaints that the matter was lagging as a result of missing disclosure. She also noted that the Crown provided disclosure to the appellant soon after his second lawyer, Mr. Stanford, raised the issue.

[49] Ultimately, the application judge rejected the appellant’s argument that, given that disclosure was not completed until two months before the originally scheduled trial dates in January 2017, the trial could not have proceeded as scheduled even if the appellant’s counsel had been available on those dates. In rejecting this argument, she held that “[t]o look back in retrospect and indicate that the trial could not proceed as it was set in January because of late disclosure seems somewhat artificial and in my view the argument must fail”.

[50] The appellant argues that the application judge failed to consider that the lack of disclosure was significant in this case. The Crown concedes that the lack of disclosure was extensive but argues that the volume of undisclosed materials is irrelevant; rather, the issue is whether there was a causal connection between the delay in disclosure and the delay in the proceedings. In this case, the Crown argues that no such causal connection exists.

[51] In light of the events leading to trial, the application judge did not make a palpable and overriding factual error in finding that there was no causal connection between the delay in disclosure and the delay leading to the appellant’s trial. The defence delay identified by the application judge was primarily due to the appellant’s repeated requests for more time to find counsel. When Mr. Stanford raised the issue of incomplete disclosure, the Crown provided the requested disclosure approximately two months before the originally scheduled trial dates. At no time did the appellant or his counsel take the position that he could not move forward with the matter due to lack of disclosure.

[52] The application judge correctly rejected the appellant’s invitation to speculate about whether the trial could have proceeded in January 2017 if the appellant’s counsel had been available. Accordingly, I do not accept that the application judge erred in finding that no defence delay should be attributed to the period before November 24, 2016, due to the Crown’s incomplete disclosure.

(c) The officer in charge’s notes do not affect the calculation of defence delay

[53] The appellant argues that the period from September 16, 2015, to October 27, 2015, should not be counted as defence delay. This is the period of time between the judicial pre-trial date when Mr. MacDonald got off the record and the subsequent judicial pre-trial on October 27, 2015. The appellant argues that this time period should not be counted as defence delay based on a notation in the officer in charge’s notes from September 16, 2015, when Mr. MacDonald and the Crown attended the trial co-ordinator’s office.

[54] These notes suggest that the parties were given potential trial dates for the summer of 2016. However, the trial was never scheduled for those dates. The appellant argues that the delay resulting from the failure to schedule those dates cannot be attributed solely to the defence because the officer’s notes indicate that the appellant was prepared to schedule the trial for the summer of 2016.

[55] In my view, this argument is speculative and must fail. The transcript from the attendance on September 16, 2015, makes no reference to any attempts by the appellant to schedule trial dates in the summer of 2016. Without more than the officer in charge’s notes, there is no basis for finding that the application judge should have excluded this period from the defence delay.

[56] Notably, the appellant’s arguments on appeal from the application judge’s decision do not challenge her finding that, even if the net delay exceeded the 18‑month ceiling, she would have found that the transitional exceptional delay outlined in Jordan applied in this case. I see no error in this aspect of her decision as it was properly based on relevant considerations under the Morin framework. Therefore, even if she had erred in calculating the net delay under the Jordan framework, she made no error in dismissing the application. On its own, this conclusion is sufficient to justify dismissing this ground of appeal.

(2) Refusal of the Appellant’s Request to Bring Post-Trial, Pre-Sentence s. 11(b) Charter Application

[57] The appellant argues that the trial judge erred in preventing him from proceeding with a second application under s. 11(b) of the Charter following the end of trial. In my view, the trial judge made no such error.

[58] At the time of the first s. 11(b) application, the trial was scheduled to start on November 14, 2017, and was expected to be completed by November 17, 2017. However, the trial was not finished on this date and the court added four additional trial dates to complete the trial, namely January 11, 12, 18 and 26, 2018.

[59] On December 15, 2017, Mr. Stanford advised the Crown that he intended to bring another s. 11(b) application. The matter was then brought forward on January 2, 2018, where the appellant raised the issue of his second s. 11(b) application with the trial judge at a trial management conference. At that time, the trial judge advised that he would not schedule the application until it was perfected.

[60] On January 9, 2018, the parties attended another trial management conference. Counsel for the appellant advised that the cost of the transcripts was $3,000, which he said the appellant could not afford. He advised that he therefore intended to proceed with other Charter applications and the rest of the trial before ordering the transcripts. The trial judge again stated that he would not schedule the proposed s. 11(b) application until “there’s an 11(b) application”.

[61] The applicant delivered a s. 11(b) notice of application on January 25, 2018. The parties appeared before the trial judge on January 26, 2018. At that time, the appellant advised that he would await the verdict before bringing the s. 11(b) application. The trial judge repeated that he would not schedule the application until it was perfected.

[62] The appellant was convicted on January 31, 2018, and the matter was adjourned to March 29, 2018, for sentencing submissions. On March 23, 2018, the trial judge brought the matter forward to inquire about the status of the s. 11(b) application. The appellant asked the court to adjourn the sentencing hearing to allow the appellant to bring his s. 11(b) application. At this point, the appellant had still not ordered the transcripts, but his counsel advised the court that his client now had the funds to do so.

[63] In oral reasons given that day, the trial judge denied the appellant’s request for an adjournment. In doing so, the trial judge noted that the appellant had not yet ordered the transcripts and he had not perfected the application. He explained that the transcripts were required for the application so that he could have the benefit of the application judge’s previous s. 11(b) decision and so that he could ascertain the extent to which the defence may have caused delay in the trial.

[64] Given that the transcripts had not yet been ordered, the trial judge was concerned that the matter would go on indefinitely. He ultimately concluded that “[the appellant] has been convicted of fraud. He no longer enjoys the presumption of innocence. There is a strong societal interest in proceeding to a timely completion of sentencing. There is to me a sense that [the appellant] simply wishes to delay sentencing.”

[65] I see no error in the trial judge’s decision to deny the appellant’s request for an adjournment.

[66] Section 720 of the Criminal Code provides that a “court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed”. In addition, the Supreme Court in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 37-38, emphasized the need for trial judges to use their case management powers to minimize delay, which may include denying an adjournment if it will “result in an unacceptably long delay”.

[67] By March 23, 2018, it had already been almost three months since the appellant first raised the issue and the trial judge was clear throughout that he would not schedule the application until it was perfected. He also made clear that transcripts would be needed for the application. The trial judge properly exercised his case management powers in denying any further adjournments and in proceeding with sentencing: R. v. Kazman, 2020 ONCA 22, 452 C.R.R. (2d) 185 (Ont. C.A.), at para. 16, leave to appeal refused, [2020] S.C.C.A. No. 58 (S.C.C.).

[68] Both the defence and the Crown have made submissions on the merits of the renewed s. 11(b) application in the event that it had been allowed to proceed. Given my conclusion that the refusal to grant an adjournment was not an error, it is not necessary to address those submissions in detail or to decide the issue on its merits. However, in my view, the application does not appear to have any merit.

[69] The appellant argues that the primary reason for the additional four trial days was the late delivery of additional disclosure by the Crown and the Crown’s failure to properly estimate the time needed for trial. However, I note that the additional four days of trial were at least partially due to the other Charter applications brought by the appellant that had not been anticipated at the time the trial dates were set. It is evident that the parties cooperated to complete the trial as soon as practicable once it became apparent that additional trial days were needed.

[70] As the Supreme Court held in Jordan, at paras. 73-74, trials can last longer than anticipated due to unexpected circumstances and “it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances”. In this case, it appears that there would be a sound basis for finding that the need for additional trial time qualifies as such an exceptional circumstance.

(3) Sentence Appeal

[71] The appellant originally sought to appeal the portion of his sentence requiring him to pay restitution in the amount of $342,447.59. He took the position that this amount exceeded the restitution sought by the Crown and that the trial judge did not provide any basis for going beyond the Crown’s recommendation. However, at the beginning of this hearing, the appellant’s counsel advised that his client decided not to pursue the sentence appeal after considering the arguments on this issue in the Crown’s factum.

[72] I agree with this assessment of the merits of the sentence appeal.

DISPOSITION

[73] Accordingly, for these reasons, the appeal from conviction was dismissed and the sentence appeal was dismissed as abandoned.

Released: April 26, 2022 “K.F.”

“L. Favreau J.A.”

“I agree. K. Feldman J.A.”

“I agree. L.B. Roberts J.A.”