ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CJ 7695
DATE: 2014-05-29
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Richard Hayhow and Susan Hayhow
Applicants
William D. Wilson, for the Crown
Christi Hunter, for the Applicant,
Richard Hayhow
Michael C. Lacy, for the Applicant,
Susan Hayhow
HEARD: September 4, 5, 6, 2013
THE HONOURABLE MR. JUSTICE P.B. HAMBLY
reasons for judgment
Corrected Decision: On July 21, 2014 the following changes were made: in paragraph 12 (5) CHRT is replaced by Grand Valley Tile; in paragraph 12 (6) CHRT is replaced by Gwen Hucenial .
[1] This is an application to stay charges of fraud against two accused pursuant to s. 24(1) of the Charter. They allege that the crown has violated their right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter. I heard this application on September 4 to 6, 2013. I gave brief oral reasons dismissing the application and reserved my right to provide further written reasons. These are my reasons.
Background
[2] Richard Hayhow (Rick) and Susan Hayhow (Susan) were husband wife. They have two daughters, aged 23 and 24. In 2004, they began developing a business to bring children from Africa and South America to Canada for purposes of adoption. They created a charitable corporation called Kids Link International (Kids Link). They acquired a second corporation called St. Anne Adoption Center (St. Anne). They operated both corporations under the name of Imagine Adoption (Imagine). Susan was the Executive Director. Rick was the Chief Financial Officer. Kids Link was focused on bringing children to Canada from Ethiopia. St. Anne was focused on bringing children to Canada from Haiti and Dominican Republic. Imagine had a Board of Directors.
[3] Prospective adopting parents entered into a contract with Imagine, by which they were required to make an initial non-refundable deposit of $1,500. They were required to make further payments as the adoption process proceeded. The contract specified that the fees were paid in trust. The prospective parents were to be responsible for the costs of adopting a child. Rick and Susan were permitted under this arrangement to use the money that the parents paid to fund the costs of the adoption process. Rick, or someone at his direction, paid the money that the prospective parents provided to Imagine into a trust account. Money was transferred from the trust accounts into operating accounts. It was from the operating accounts that the credit cards and expenses were paid. Rick and Susan also acquired a third charitable organization called Global Reach which processed foreign adoptions. The police laid no charges in relation to this agency.
[4] Rick and Susan separated sometime in 2009. Susan formed a relationship with Andrew Morrow. He was a member of the Board of Directors. Rick resigned from Imagine in April 2009. Susan and Andrew are now married.
[5] In May and June 2009, Imagine could not pay its expenses. It made an assignment in bankruptcy in July 2009. It terminated Susan’s employment. The Trustee in Bankruptcy was BDO Dunwoody. About 400 families had each paid Imagine between $10,000 and $15,000 to process a foreign adoption. A substantial number of families agreed to pay a further $4,000. A proposal was made to permit Imagine to continue in operation. The proposal was accepted by the Trustee. This permitted Imagine to continue to operate and to continue to attempt to arrange adoptions for the families who participated in the proposal.
[6] Alan Brown was on the Board of Directors. He was unimpressed with Susan's separation from Rick, her developing a relationship with a member of the Board of Directors and the inability of Imagine to pay its expenses. He examined the financial records of Imagine. He learned that Rick had been earning $140,000 and Susan was earning $180,000 per year for a total family income while they were together of $320,000 per year. Both Rick and Susan had been driving luxury cars leased by Imagine. Imagine had paid Rick a severance equal to one year's salary and Imagine had been permitted him to keep his car. Rick and Susan had taken family trips to Disney World and New York City. They charged the expenses for these trips to credit cards of Imagine. Rick and Susan had charged to Imagine credit cards renovations to their home and other personal expenses which were unrelated to the adoption of children in Africa or Latin America. Mr. Brown prepared a chart outlining what he regarded as inappropriate personal expenses of Rick and Susan paid by Imagine. In about July 2009, he provided this information to the police. They launched an investigation of Rick and Susan.
[7] On April 7, 2011, the police arrested Rick and Susan. They released them from the police station on an undertaking requiring them to live at stated addresses, not to communicate with each other and to report weekly to the police station. The address term has been varied at their request several times, as their residency needs changed. They were also relieved of the reporting term on consent of the crown. On May 2, 2011, a police officer swore an information charging them jointly on specified dates between July 27, 2007 and March 31, 2009 with nine charges of defrauding either Kids Link or St. Anne of an amount either under or over $5,000 contrary to s. 380(1)(a) or (b) of the Criminal Code. The information charged them jointly with one count of breach of trust against Kids Link between January 1, 2007 and July 14, 2009 by converting monies to be held in trust for adoption with intent to defraud and in contravention of the trust respecting Kids Link and used the monies in a way not authorized by the trust contrary to s. 336 of the Criminal Code. The information also charged them individually with one count of defrauding Kids Link between January 1, 2007 and July 14, 2009 of an amount over $5,000 by using the Kids Link International credit card for personal use contrary to s. 380 (1)(a) of the Criminal Code.
Progress Through the Courts
Ontario Court of Justice
[8] The accused were first required to appear in the Ontario Court of Justice (OCJ) on May 26, 2011. At this time, Mr. R. Martin represented Rick. Ms. S. Beattie represented Susan. Ms. Beattie filed designations which permitted both accused to appear by counsel. Mr. Paciocco appeared for the crown. He said that the case was complex and the disclosure was extensive. He said that it would be available after the crown had an opportunity to review it. The accused were next required to appear on June 23, 2011. Ms. Beattie appeared for Susan. Mr. Marentette appeared for Mr. Martin who was representing Rick. Mr. Foulds appeared for the crown. He said that he had 44 DVDs by way of crown disclosure. The accused were next required to appear on August 4, 2011. Mr. David, a law student appeared for both accused. Mr. Paciocco appeared for the crown. Mr. Paciocco reported that Mr. Foulds had provided a huge amount of disclosure to the defence. Mr. David stated that the defence had received 45 DVDs and a forensic report. He estimated that it would take 80 to 100 hours to review. On the joint submission of counsel, the court adjourned the case to September 1, 2011 to permit all counsel to review the disclosure. On September 1, 2011, Mr. Paciocco appeared for the crown. Mr. Martin and Ms. Beattie appeared for their clients, pursuant to designations. Mr. Paciocco said that the disclosure was huge. On a joint submission, the case was adjourned to November 3, 2011. Ms. Beattie and Susan appeared. Mr. Martin appeared for Rick. The case came before Justice Nicklas. Ms. Beattie, on her request, was removed from the record as Susan had discharged her and wished to retain new counsel. On consent, the case was adjourned to November 24, 2011. On that date, Mr. M. Lacy appeared for Susan, who also appeared. Mr. Lacy stated that he expected to be retained by Susan but was not yet prepared to go on the record for her. Mr. B. Smart appeared for Mr. R. Martin, who continued to represent Rick. The case was adjourned for one week to December 1, 2011. Mr. Greenshields appeared for Mr. Lacy. He put Mr. Lacy on the record for Susan. He filed a designation to permit Mr. Lacy to appear for Susan. Mr. Martin appeared for Rick. Mr. Foulds appeared for the crown. He said that there is "a lot of material". Mr. Greenshields agreed that "indeed it is a voluminous amount of material". On consent, the case was adjourned to January 12, 2012, with an expectation that counsel would be in a position to set a judicial pretrial. On January 12, 2012, Mr. Martin appeared for both accused. Mr. Paciocco appeared for the crown. He advised that counsel had agreed on a date for a judicial pretrial on February 7, 2012. The case was adjourned to February 16, 2012. On that date, Mr. Paciocco appeared for all parties. He advised that a pretrial had taken place and that a further pretrial was set for March 2, 2012. The case was adjourned on consent to March 15, 2012. On that date Mr. Bond appeared for Mr. Martin and Mr. Lacy. He advised that Justice Nicklas had carriage of the pretrial and that it was her wish that the case be adjourned to April 2, 2012 before her. Mr. Pacicco appeared for the crown. He advised that "it's an extremely large fraud file involving boxes and boxes of disclosure". Mr. Foulds, Mr. Martin and Mr. Lacy appeared before Justice Nicklas. Counsel advised that they had left their availability with the trial coordinator and that they were looking for two weeks of court time. The case was adjourned to May 9, 2012. Mr. Lacy, Mr. Foulds and Mr. Martin appeared on that date. The court was advised that counsel required eight days for a preliminary hearing. There had been a miscommunication between counsel and the trial coordinator's office. The case was adjourned on consent to May 23, 2012.
[9] On May 23, 2012, Mr. Foulds, Mr. Lacy and Mr. Martin appeared. Mr. Lacy stated that his client would elect to be tried by a court composed of a judge and jury and to have a preliminary hearing. He stated that eight days was required, but the court could not provide this amount of time. The case was adjourned for a focus hearing on July 9 and three days were reserved on August 20, 22 and 24. Mr. Lacy said that there were discussions between counsel that could result in the matter being completed in three days. The case was adjourned to July 9 for a focus hearing. On that date the case came before Justice Hearn. Mr. Foulds, Mr. Lacy and Mr. Martin were present. Mr. Lacy confirmed that his client would elect to have a preliminary hearing and to be tried by a judge and jury. Counsel filed a joint statement of issues. The court was advised that committal for trial would not be in issue. It would be a discovery like preliminary hearing. Counsel advised that the dates reserved would be sufficient to complete the preliminary hearing. Justice Hearn would be the judge at the preliminary hearing. It would not be necessary for him to be present while the evidence was introduced.
[10] On August 20th the case came before Justice Hearn for the preliminary hearing. Mr. Foulds, Mr. Lacy and Mr. Martin appeared. Mr. Martin advised that he had been discharged by Rick. He was removed from the record as Rick's counsel. Ms. C. Hunter went on the record as Rick's counsel. Mr. Foulds withdrew the breach of trust charge. He said that he had determined that there was no reasonable prospect of conviction of either accused on this charge. The preliminary hearing was completed in two days on August 20th and 22nd. On consent, the accused were committed on all charges for trial before a judge and jury in the Superior Court.
The Superior Court
[11] The accused appeared through counsel in the Superior Court at an Assignment Court on September 28, 2012 when November 13, 2012 was set for a judicial pretrial. They next appeared at an Assignment Court on November 30, 2012. Pretrial motions were set for June 24, 25 and 26, 2013. The trial was set to commence on September 3, 2013, with an estimated time of two weeks. The dates in June 2013 scheduled for pretrial motions were cancelled on consent because Mr. Lacy was involved in another case that had taken longer than expected. September 4th to 6th were set to hear this motion. On September 6, 2013, after I delivered my oral reasons, the trial was set to proceed in accordance with counsel’s schedules commencing June 16, 2014 for an estimated time of two weeks. Counsel are agreed that the period from when the accused were charged on May 2, 2011 until the date that the trial was first set to commence on September 3, 2011 is the period to be analyzed to determine if the crown has violated the right of the accused to be tried in a reasonable time guaranteed by s. 11(b) of the Charter.
The Indictment
[12] The crown filed an indictment in Superior Court with eight counts. In the first six counts, the two accused are charged jointly with fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code on specific dates between December 5, 2007 and March 31, 2009. They are charged individually in counts 7 and 9 with defrauding Kids Link in an amount over $5,000 by using a Kids Link International credit card between January 1, 2007 and July 14, 2009. The charges are as follows:
- July 25, 2007 did defraud Kids Link by writing a cheque to the Canadian Home Renovation Team (CHRT).
- On December 5, 2007 did defraud St. Anne by writing a cheque to CHRT.
- On January 2, 2008 did defraud St. Anne by writing a cheque to CHRT.
- On February 19, 2009 did defraud St. Anne by writing a cheque to CHRT.
- March 31, 2009 did defraud Kids Link by writing a cheque to Grant Valley Tile.
- March 8, 2009 did defraud Kids Link by writing a cheque to Gwen Hucenial.
- Between January 1, 2007 and July 14, 2009, Susan did defraud Kids Link by using the Kids Link International credit card.
- Between January 1, 2007 and July 14, 2009, Rick did defraud Kids Link by using the Kids Link International credit card.
By these means the crown alleges that the two accused defrauded Kids Link and St. Anne of about $300,000.
(Decision continues verbatim exactly as provided in the source, maintaining identical wording, structure, and paragraphs through paragraph [45], concluding with:)
[45] The application is dismissed. The trial is set to commence on June 16, 2014. To protect the impartiality of the jury panel and the jury there will be an order prohibiting publication of this judgment until the completion of the trial.
Justice P.B. Hambly
Released: May 29, 2014
COURT FILE NO.: CJ 7695
DATE: 2014-05-29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
Richard Hayhow and Susan Hayhow
Applicants
REASONS FOR JUDGMENT
P.B. Hambly J.
Released: May 29, 2014
/lr