ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1697/13
DATE: 20140604
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
LEEANNE HOULE, TERRANCE HOULE, AND JOHN PAUL BARON
Applicants
Nicole Stoner and Nila R. Mulpuru, for the Crown
Ronald S. Ellis, Counsel for Leeanne Houle
John Getliffe, Counsel for Terrance McGill
John Paul Baron, Self-represented
– and –
Stanley Jenkins, Counsel for
Legal Aid Ontario
LEGAL AID ONTARIO
Intervener
HEARD: May 5 and 6, 2014 at Sarnia
REASONS ON SECTION 11(b) APPLICATION
THOMAS j.
THE APPLICATION
[1] On December 15, 2009 Leeanne Houle (Houle), Terrance McGill (McGill) and John Paul Baron (Baron) were arrested and charged with 31 counts of fraud over $5,000. The charges arise from allegations of involvement in a large-scale “Ponzi” scheme. The alleged loss approaches 3 million dollars.
[2] The accused were released on promises to appear with officer in charge undertakings not to communicate with each other or to leave the Province of Ontario.
[3] On February 21, 2013, after the preliminary hearing, all three accused were committed to stand trial on 29 counts. A trial date of November 10, 2014 has now been set in the Superior Court of Justice in Sarnia, Ontario. By the time of trial, 1788 days or about 60 months will have passed between the charges and trial.
[4] Mr. Ellis represents Houle, Mr. Getliffe represents McGill, Baron is self-represented. Each brings an application alleging an unreasonable delay to trial constituting a breach of their rights as guaranteed by section 11(b) of the Charter. They seek a stay of the proceedings pursuant to section 24(1).
[5] I am hearing this application as case management judge having been appointed to that role pursuant to section 551.1 of the Criminal Code, shortly after I conducted the first pre-trial conference in the Superior Court, on November 21, 2013.
[6] At the outset of this application I granted Legal Aid Ontario’s (L.A.O.) request to intervene. It appeared by counsel, Mr. Jenkins, and filed a factum and affidavit. I allowed the intervention to provide information on the legal aid application process and how it related to the efforts of all these accused to obtain legal aid. It was clear to me from the material filed that all accused claimed delays and mistakes by L.A.O. contributed significantly to unreasonable delay.
THE ANALYTICAL FRAMEWORK
[7] In 11(b) motions the court must analyze four factors: (a) the overall length of delay from charge to trial; (b) any waiver; (c) the reasons for any periods of delay; (d) the prejudice to the accused protected by s.11(b). (R. v. Smith (1989), 1989 12 (SCC), 52 C.C.C. (3d) 97 (S.C.C.) (Smith); R. v. Askov (1990), 1990 45 (SCC), 59 C.C.C. 3d 449 (S.C.C.) (Askov); R. v. Morin (1992) 1992 89 (SCC), 71 CC.C. (3d) 1 (S.C.C.) (Morin); R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. NO. 5071 (S.C.J.) (Lahiry).
[8] Once the analysis of the four factors is complete the Court must balance the result against the societal interest in a trial on the merits (Morin p.12-13, Lahiry para.4).
[9] The first factor, assessing overall delay, is a threshold issue of excessiveness. If the overall length is sufficient to raise a concern about reasonableness the analysis continues (Morin p.14, Askov p.466, Lahiry para.5).
[10] The second factor is waiver. Waiver
… can be either express or implied but it “must be clear and unequivocal” and made with “full knowledge of the rights the procedure was enacted to protect”. When counsel expressly states, on the record, that s.11(b) is waived for the period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where “a choice has been made between available options” and “the actions of the accused amounted to an agreement to the delay” rather than “mere acquiescence in the inevitable”. Once a waiver has been found, that period of delay is simply removed from the s.11(b) analysis and the overall delay is shortened. See: R. v. Askov, supra at pp. 481-2 and 494-5; R. v. Morin, supra at pp. 13-15. (Lahiry, para.6)
[11] The third factor requires the assessment of “reasons for delay”. This is the most time consuming and potentially nuanced portion of the analysis. It requires an examination of the individual periods in the life of the prosecution; applying objective analysis to each period of the delay to determine the cause.
The five traditional causes are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes, such as judicial delays. Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevant evidence, this factor then assigns a weight to that period. Some delays are said to “weigh against the Crown”, some delays are said to “weigh against the defence”, and some delays are said to be “neutral”. Needless to say, delays caused by the accused’s own actions “will justify” an otherwise unreasonable period of delay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bring some collateral proceedings, or to try to resolve the case. On the other hand, delays caused by the Crown or by inadequate resources “cannot be relied upon…to explain away delay that is otherwise unreasonable”. Finally, delay due to the inherent requirements of the case “is neutral and does not count against the Crown or the accused”. See: R. v. Askov, supra at pp. 477-481 and 483; R. v. Morin, supra at pp. 16-23; R. v. MacDougall (1998), 1998 763 (SCC), 128 C.C.C. (3d) 483 at p. 500 (S.C.C.).
[12] The fourth factor examines the prejudicial impact of the delay on the accused and his liberty, security and fair trial interests. With long periods of unreasonable delay prejudice can be inferred. The accused as well may lead evidence of delay specific to them and their special circumstances. This evidence may determine the analysis in cases where the delay is “close to the line.” (Askov p. 474, Morin p. 23-24, Smith p. 111).
[13] In Lahiry, Code J. describes the resulting analysis in the following way:
At the end of assessing these four factors, the court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The court should also arrive at some assessment as to the strength or weakness of the claim to prejudice. It is only unreasonable periods of delay, causing prejudice, which s.11(b) protects against. As noted above, these factors must then be balanced against the societal interest in a trial on the merits.
The above framework can be subtle and complex…
[14] This proceeding has approximately 45 appearances. I choose to summarize them as follows.
January 18, 2010: Mr. D. Bains’ (Bains) appeared for all three accused as counsel. Bains received voluminous disclosure. The Crown elects to proceed by indictment. At the defence request and with Crown consent adjourned to March 1, 2010.
March 1, 2010: Bains appeared. He has signed an undertaking re: the use of disclosure and was provided with a hard drive containing approximately 8,000 pages of disclosure. Defence requested and Crown consents to adjournment.
April 19, 2010: Bains appeared. He advised he has requested further disclosure. Matter was adjourned to Bains’ next available date. The Crown (Evans) pressed counsel to move the matter along.
June 14, 2010: Bains appeared and advised he needed further time to review what is now almost 10,000 pages of disclosure. The matter is adjourned to Bain’s next available date with a case management hearing to be set in the meantime.
August 9, 2010: Bains appeared and the matter is set for case management hearing.
September 21, 2010: A case management hearing is held “off record” with Hornblower J. of the Ontario Court of Justice (OCJ). The case is adjourned to set a preliminary hearing date and for a defence election.
October 8, 2010: Bains appeared and set preliminary hearing for August 2-11, 2011 and September 19-27, 2011. The Crown advised any date that worked for the court worked for the Crown.
April 13, 2011: An agent appeared for Bains on his application to be removed as counsel of record. He is removed. The Crown and the Judge express concern about the need for counsel before the preliminary hearing. Importantly, Hornblower J. emphasizes that the date set was to accommodate Bains’ schedule and the court had possessed earlier dates. Accused were to seek new counsel.
April 26, 2011: All the accused appeared personally. They have contacted a large number of lawyers, so far without success. Evans urged them to apply for legal aid. Their release terms were varied to allow for communication.
May 9, 2011: All three accused appeared and at request an adjournment awaiting a response from Legal Aid.
May 30, 2011: All three accused appeared before McGrath J. Baron executed an undertaking for disclosure and received it. Houle and McGill refused to sign undertaking. Evans advised the court he would consider written requests on a case by case basis to allow their travel out of province. Baron was adjourned to June 21st and the others were to appear earlier before Hornblower J.
June 1, 2011: McGill and Houle still refuse to sign undertaking for disclosure and were adjourned to June 21, 2011.
June 21, 2011: Hornblower J. advised the three accused that he had vacated the August preliminary hearing date as they were still seeking counsel. At this appearance the undertaking was amended slightly by the Crown, and Houle and McGill received disclosure. Houle and Baron had been denied legal aid. Matter was adjourned for a Rowbotham application.
August 30, 2011: All three accused were before Hornblower J. on Rowbotham/Fisher applications. Counsel appeared for the Province to argue there was no jurisdiction in an OCJ judge. Adjourned by Hornblower J. to consider his position.
September 13, 2011: Houle and McGill attended and advised they now have legal aid and wished to convert application to a Fisher application. Matter adjourned for the judge to consider this. There was a bench warrant with discretion (B.W.D.) for Baron.
September 27, 2011: Houle and McGill appeared. Hornblower J. ruled he was without jurisdiction. The matter is adjourned for preliminary hearing date to February, 2012.
October 25, 2011: Houle and McGill appeared before Desotti J. in Superior Court and obtained funding for counsel to argue a Fisher application.
December 21, 2011 Baron application for Rowbotham order was denied by Desotti J.
January 20, 2012: Houle and McGill appeared before Desotti J. along with counsel from Legal Aid. Both accused have counsel Ellis and Skinner. Desotti J. denies the defence application for an increased rate of payment now that travel and meals have been authorized by Legal Aid.
January 31, 2012: Houle and McGill appeared before Hornblower J. and withdrew an application they brought regarding legal aid. They advised the Court legal aid made a mistake in not flagging their application for big case management (BCM). This would have allowed them to retain counsel more quickly.
February 13, 2012: This was the first day of the proposed preliminary hearing before Hornblower J. Houle and McGill requested an adjournment since they were close to securing counsel. Baron advised that “I don’t think it makes any consequence to me…” Evans wished to proceed and the judge agreed to hear two “out of area” witnesses. Houle was suddenly taken to the hospital by ambulance. The matter was adjourned to February 14, 2012.
February 14, 2012: A doctor’s letter was produced that said Houle needed bed rest. She suffered from colitis. The preliminary hearing was adjourned briefly.
February 21, 2012: All three accused appeared personally. Houle was granted an adjournment due to her medical condition. Evans advised that the Crown was willing and able to proceed.
February 27, 2012: McGill appeared and there are B.W.D. for Houle and Baron. The matter is adjourned to allow defence counsel Mr. Ellis to confirm matters with legal aid and coordinate preliminary hearing dates.
March 12, 2012: McGill and Houle appeared personally. B.W.D. for Baron. Evans requested an adjournment back before Hornblower J.
April 5, 2012: McGill and Houle appeared. B.W.D. for Baron. Evans presented a letter from Ellis indicating he was optimistic he would be counsel soon. Matter was adjourned for preliminary hearing dates.
April 24, 2012: All three accused appear personally. Ellis is not yet on the record but with his available dates the new preliminary hearing is set to commence on December 7, 2012. Houle expresses a desire to have an earlier date and Baron for the first time on the record raises the issue of delay. The record is unclear as to whether there were earlier dates available that fit with Ellis’ schedule.
May 16, 2012: While not a matter on the record Baron served a motion for a stay due to delay. The motion record was not accepted as no trial date had been assigned. It is that record, in an amended form, that Baron has filed for his portion of this argument.
December 7, 10, 12, 13, 17, 18, 19, 2012 and January 30, 2013:
The preliminary hearing including argument was completed on these dates. McGill is represented by Mr. Kitto. Houle is represented by Ellis. Baron is self-represented.
February 21, 2013: Hornblower J. ordered committal for trial for all three accused and adjourned to the next Superior Court Assignment Court on May 10, 2013.
May 10, 2013: Mr. Getliffe appeared for McGill and as agent for Ellis. Baron appeared personally. Getliffe requested an adjournment to September 13, 2013 to coordinate a trial date, motions date and to receive a pre-trial date from the trial coordinator.
September 13, 2013: Mr. Ellis appeared for Houle and as agent for Getliffe. Baron appeared personally. The matter is adjourned to the November 29, 2013 Assignment Court. Counsel was directed to see the trial coordinator for a pre-trial date.
November 21, 2013: Counsel and Baron appeared before me to commence the pre-trial. There was a discussion regarding the number and nature of pre-trial motions. Matter adjourned to January 24, 2014 to continue the pre-trial. Defence, contrary to the Rules, had filed no pre-trial reports.
November 29, 2013: In this Assignment Court Getliffe on behalf of all requested that all matters be adjourned for the further pre-trial.
January 24, 2014: Mr. Getliffe appeared for McGill and as agent for Ellis. Baron appeared personally. Baron’s fresh Rowbotham application is adjourned to be argued before me on March 13, 2014. I set dates to hear the change of venue application and this 11(b) application on May 5th and 6th, 2014 respectively. The indictment was adjourned to the Assignment Court of February 14, 2014 to set a trial date.
February 14, 2014: In Assignment Court I set the trial date of November 10, 2014 for 4-5 weeks before a judge and jury.
March 13, 2014: The Rowbotham application for Baron was adjourned to April 23, 2014 to accommodate late filing of materials by the Province.
April 23, 2014: I heard Baron’s Rowbotham application. Application was subsequently denied by written reasons of April 29, 2014.
May 5 and 6, 2014: Applications for publication ban and change of venue denied for oral reasons. Delay argument received and reserved for these reasons.
November 10, 2014: Scheduled first day of trial.
ANALYSIS
(a) The Overall Length of Delay
[15] There is no doubt that 1788 from charge to trial date prompts further inquiry as to reasonableness. This factor is conceded.
(b) Waiver
[16] While the record does not disclose any clear instances of waiver one might view setting of the first preliminary hearing date to accommodate Bains’ schedule as a waiver of that delay. I am, however, unsure from the record the status of available court dates at that point.
[17] In addition while Baron seems content to adjourn the second preliminary hearing date after the illness of Houle I am not certain he did so “with full knowledge of the rights the procedure was enacted to protect” (Askov, p.481-482).
[18] As part of the nuanced approach to this analysis I am satisfied to deal with these incidents in the manner disclosed below.
(c) The Reasons for Delay
(i) December 15, 2009 – October 8, 2011
[19] This time period runs from the time of the charge to the date of the setting of the first preliminary hearing date. It takes in the time of the case management hearing in the OCJ.
[20] Mr. Bains appears on the record on a number of occasions seeking adjournments on his schedule to allow for the review of approximately 10,000 pages of disclosure produced on a hard drive. This is a complex prosecution with voluminous disclosure.
[21] The applicants are critical of the continuing disclosure and seek that I determine there was a Crown-driven delay for a significant part of this period.
[22] The applicants, particularly Mr. Baron, argue that there are still outstanding disclosure requests that have been denied by the Crown. The applicants confirm that any disclosure deficiencies did not inhibit their ability to complete the preliminary hearing and in fact I have no disclosure applications before me now.
[23] I find this 10 month period should be appropriately viewed as inherent or neutral time allowing for intake, disclosure and the case management hearing.
(ii) October 8, 2010 – April 13, 2011
[24] This is the time period between the setting of the preliminary hearing date and the point when Bains was removed as defence counsel as a result of a breakdown in the solicitor/client relationship.
[25] The next scheduled date was the August preliminary hearing but the latter portion of the original time period must be re-categorized after the loss of defence counsel.
[26] Not having the exact status of available court dates and accepting the judicial discretion that the preliminary hearing date was set to accommodate Bains’ schedule, I accept as fair the Crown suggestion that the time period be apportioned 50 percent to defence and 50 percent to systemic delay. I find the systemic delay in this period to be 2 months.
(iii) April 13, 2011 – September 27, 2011
[27] This period spans the time when defence counsel was removed from the record through the accuseds’ attempts to bring a Rowbotham/Fisher supplication in the OCJ. Ultimately the court ruled it was without jurisdiction. Houle and McGill appeared on several occasions and refused to sign the Crown’s undertaking to obtain disclosure themselves. Their complaint arose from their claims that the material had already been released to the public in the parallel Civil Remedies Act process. Beyond making a point that they felt disclosure had been wrongfully leaked to creditors, their position had no merit and should have been resolved quickly. The fact that the Crown ultimately agreed to amend the undertaking slightly did not make their argument any more compelling.
[28] On September 27, 2011 the prosecution was adjourned for a second preliminary hearing date in February, 2012. This period of approximately 5.5 months encompassing nine appearances should be attributed equally between defence and inherent or neutral delay.
(iv) September 27, 2011 – February 13, 2012
[29] These four appearances account for the three accuseds’ attempts in the Superior Court to obtain a Rowbotham order (Baron) and a Fisher order for enhanced fees (Houle and McGill). Ultimately, both applications were denied. February 13, 2012 was the first hearing date for the second scheduled preliminary hearing.
[30] While there is an argument that the 5 months between set date and the February 13, 2012 scheduled start of the preliminary should be systemic, or institutional delay it is hard to designate it as such, considering the continued attempts to obtain counsel and what ultimately happens on February 13,2012.
[31] This is the time period when Houle and McGill start to voice concerns about their alleged problems with Legal Aid Ontario. Houle states that due to a mistake they had not been flagged for BCM and without the mistake they could have retained counsel sooner. This is a point where the intervener was a great assistance. I choose at this point to describe the legal aid process as it relates to all three accused and the time consumed. It is an extremely important piece of the delay puzzle.
[32] I accept as accurate the following account of the three accused’s contact with legal aid as it is found in the affidavit of Christine O’Connor, Supervisory Duty Counsel in Sarnia.
Baron (Legal Aid)
[33] On May 2, 2011, Mr. Baron applied for legal aid. On May 17, 2011, his application was refused by the District Area Director. On May 30, 2011, Mr. Baron appealed that refusal to the Area Committee. On June 3, 2011, the Area Committee upheld the refusal. On August 29, 2011, Mr. Baron appealed the decision of the Area Committee to the Provincial Office. On September 13, 2011, the Provincial Office upheld the refusal of legal aid coverage for Mr. Baron.
[34] Thus, Mr. Baron applied for legal aid. He was refused and he exhausted all rights of appeal. That process took 134 days.
[35] On April 22, 2013, Mr. Baron applied for a reconsideration of the refusal of legal aid. The reconsideration was referred back to the Provincial Office. On April 30, his reconsideration request was refused. On December 6, 2013, Mr. Baron made a second request for a reconsideration. On December 12, 2013, the second reconsideration request was refused. In addition he made three attempts to obtain a Rowbotham order, one in the OCJ and two in the Superior Court. All were denied.
McGill (Legal Aid)
[36] On May 4, 20111, Mr. McGill applied for legal aid. On May 6, 2011, Mr. McGill was issued a certificate with the standard wording that if potential fees and disbursements were at big case management limits that counsel was to advise the Area Director. If a certificate is not acknowledged by a lawyer within 90 days it expires. Mr. McGill’s certificate expired in September 2011, because it was not acknowledged by a lawyer.
[37] On January 30, 2012, Mr. McGill applied for a new certificate. On February 3, 2012, Mr. McGill was issued a certificate with the standard wording that if potential fees and disbursements were at big case management limits that counsel was to advise the Area Director.
[38] On July 11, 2012, Mr. McGill advised LAO that he wished to retain Mr. John Getliffe. On August 13, 2012 the certificate was acknowledged by Mr. Getliffe.
[39] On August 13, 2012, Mr. Getliffe applied for BCM for the Preliminary Hearing. On September 10, 2012, Mr. Getliffe was provided with a BCM budget for the Preliminary Hearing.
Houle (Legal Aid)
[40] On May 27, 2011, Ms. Houle applied for legal aid. On June 3, 2011, her application for legal aid was refused by the District Area Director. Ms. Houle appealed that refusal to the Area Committee. On June 22, 2011, the Area Committee allowed Ms. Houle a legal aid certificate. The certificate was issued that day with the standard wording that if potential fees and disbursements were at big case management limits that counsel was to advise the Area Director. Ms. Houle’s certificate expired in September 2011, because it was not acknowledged by a lawyer within 90 days.
[41] On January 30, 2012, Ms. Houle applied for a new certificate. On February 3, 2012, Ms. Houle was issued a certificate with the standard wording that if potential fees and disbursements were at big case management limits that counsel was to advise the Area Director.
[42] On April 4, 2011, the certificate was acknowledged by Mr. Ellis.
[43] On April 4, 2012, Mr. Ellis applied for BCM for the Preliminary Hearing. On May 29, 2012, Mr. Ellis was given an interim budget. On June 27, 2012, Mr. Ellis was granted a BCM budget for the Hearing. September 10, 2012, Mr. Getliffe was provided with a BCM budget for the Hearing. From when LAO received the budget request to the provision of an interim budget was 55 days, and from the receipt of the budget request to the full and final budget was 84 days.
[44] LAO’s BCM Program is designed to accommodate complex criminal cases like this one where the fees are expected to exceed $20,000. It accounts for only 1.4 percent of all certificates issued but accounts for 22 percent of expenditures on all criminal certificates. BCM requires the retained counsel to negotiate a budget with LAO for each significant step in litigation process. The certificates for Houle and McGill contained the standard wording regarding notification of LAO if fees were likely to meet the BCM threshold. This process is regularly engaged by defence counsel in the defence of complex prosecutions. While counsel may not be happy about the process it is viewed as a necessary step in the Province’s apportionment of scarce resources.
[45] There is nothing about the record here that leads me to believe there was any mistake by LAO. BCM budgets were negotiated quickly with Messrs. Ellis and Getliffe once they applied. The system reacted as designed. There is nothing about this process that would require me to assess state or institutional delay. It may be that many counsel were reluctant to take on this case with a legal aid budget but the record reflects that LAO authorized travel and meal expenses which allowed Houle and McGill to expand their search area. They have now retained extremely competent counsel pursuant to that process.
[46] On February 13, 2012 Hornblower J. stated that the applicants had been diligent in trying to secure counsel and the delays thus far were not their fault. Applicant’s counsel seeks to view this as judicial recognition of institutional delay. While the comment that may or may not have been accurate. I find that accuseds’ meanderings through the legal aid process cannot be seen as delay occasioned by the state. At no time in this 5 month period were Houle and McGill ready for the preliminary hearing. I view this period as neutral.
(v) February 13, 2012 – April 14, 2012
[47] There are seven appearances in this period. The Crown attempts to start the preliminary hearing but it is adjourned again as a result of Houle’s hospitalization. Subsequently, the Court begins to hear about Mr. Ellis being retained and his schedule starts to be considered in the setting of a third date for the preliminary hearing. This period of 2 months and 1 week is neutral.
(vi) April 24, 2012 – December 7, 2012
[48] On April 24, 2012 all three accused appear and set the third preliminary hearing date of December 7, 2012. Mr. Ellis is not yet on the record. While the date set complies with Mr. Ellis’ availability the record is not clear as whether there were earlier dates available. Mr. Ellis acknowledged during argument he was not ready to conduct the hearing on April 24, 2012. I have apportioned 6 months of this 7.5 month period to institutional delay.
[49] On April 24, 2012 both Houle and Baron request earlier dates. Baron for the first time on the record makes it clear he is not content with this further delay. In fact less than a month later he attempts to file a motion for a stay due to delay.
[50] At this point I must consider that Baron’s position is different than that of Houle and McGill. He was unrepresented at the aborted preliminary when Houle became ill. He consented to the adjournment but was really in no position to do otherwise. It was clear at that point he would be without counsel through the preliminary hearing. How then do the adjournments requested by the other two accused effect his application here?
[51] On the narrow issue of delay caused by a co-accused, this is generally seen as “neutral” in the computation of time. The Ontario Court of Appeal stated in R. v. Whylie (2006), 2006 9037 (ON CA), 208 O.A.C. 247 that “ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis” (para. 24). What was extraordinary in Whylie was that the Crown had agreed to a severance of the counts early but circumstances arose where the accused were tried together. The Whylie decision relied on R. v. Sapara, 2001 ABCA 59, 91 Alta. L.R. (3d) 28, leave to appeal to SCC refused, [2001] S.C.C.A. No. 237.
[52] This is consistent with the case law from trial level decisions up until that point. For example, Malloy J. characterized delay caused by a co-accused as neutral in R. v. Skandarajah (1999), 97 O.T.C. 193. While the delay cannot be attributed to the applicant accused, the delay cannot fall into the category of “unreasonable delay” as contemplated by s. 11(b) of the Charter.
[53] The issue of how the delay is characterized seems to be settled in the jurisprudence – that the delay is “neutral”. More controversial is the issue of whether the Crown ought to have severed the indictment.
[54] The decisions in Whylie and Sapara were followed in R. v. L.G., 2007 ONCA 654, 229 O.A.C. 89, where Simmons J.A. wrote that delay due to the co-accused being neutral is justified because “it is in the interests of justice that individuals charged jointly with an offence be tried together” and that “severance will rarely be granted”.
[55] Laskin J.A., writing for the court in Whylie, commented on this issue at para. 24:
I agree with the submission of the Crown that ordinarily persons charged jointly with an offence should be tried together. A single trial for two or more accuseds generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once. Severance is rarely granted. Moreover, as the Crown pointed out, ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis.
[56] The Whylie reasoning considered R. v. Heaslip (1983), 1983 3519 (ON CA), 1 O.A.C. 81, where Martin J.A. wrote:
The Crown’s legitimate interest in ensuring that the accused be tried together must, however, be balanced against the accused’s constitutional right to be tried within a reasonable time. The Crown’s desire to ensure that all the accused be tried together was, of course, entirely proper, but it imposed a corresponding obligation on the Crown to take appropriate measures to ensure that Garofoli’s motion proceeded expeditiously, and to move to have the application dismissed if Garofoli’s counsel did not proceed promptly.
Thus, the Crown must consider severing the counts when it appears that the delay due to a co-accused is prejudicing the others.
[57] While not argued before me, I must consider whether the Crown had an obligation to consider severing Baron from McGill and Houle.
[58] This is a complex fraud prosecution. Numerous civilian witnesses will testify. Early on it became clear that the defences raised by Houle and McGill were not compatible with the position of Baron. Throughout this period Baron continued to press for counsel and in fact his last application was dismissed by me on April 29, 2014.
[59] I find that the concerns about inconsistent verdicts and multiple lengthy proceedings were very real here. In the circumstances of this prosecution, recognizing the right of the accused to a trial in a reasonable time, it would not have been in the interests of the administration of justice to sever the accused.
(vii) December 7, 2012 – February 21, 2013
[60] This is the period during which the preliminary hearing was conducted, a decision was reserved and committal ordered. There are ten appearances. No one is suggesting unreasonable delay here. This period is seen as neutral.
(viii) February 21, 2013 – November 21, 2013
[61] This is a 9 month period from committal to the first pre-trial before me. The time spans two appearances in a Superior Court Assignment Court for counsel to acquire a pre-trial date and co-ordinate pre-trial motions. This is an appropriate intake period in the Superior Court and should be viewed as inherent delay. At the first pre-trial defence counsel had not filed pre-trial materials as required by the Superior Court Rules. A further judicial pre-trial was clearly necessary to organize and define the pre-trial motions. It was at this point I requested to be appointed case management judge due to the age and complexity of the case.
(ix) November 21, 2013 – January 24, 2014
[62] This 2 month period considers an appearance at another assignment court and a consent adjournment to January 24, 2014 for a second pre-trial before me. Defence pre-trial materials are filed. This is a 2 month neutral period.
(x) January 24, 2014 – November 10, 2014
[63] This period of approximately 10.5 months is clearly institutional delay where the Court is reacting to its only available dates. This scheduling takes into account the motions I have heard as mentioned above but the dates are products the inevitability of the Court’s busy schedule.
(xi) Conclusion (Reasons for Delay)
[64] I have found that institutional or systemic delay accounts for 18.5 months of the overall period from December 15, 2009 to the set trial date of November 10, 2014 (8 months in the OCJ and 10.5 in the SCJ). I have not found the Crown responsible for any delay.
(d) Prejudice to the Accused
[65] There can be no doubt the 5 years from arrest to trial has caused some inherent prejudice to the accused persons. I must, however, remember that I have found the system responsible for only 18.5 months of that delay.
[66] Mr. Baron and Ms. Houle provided oral evidence of prejudice. Baron suffers from Fuchs Dystrophy a degenerative disease affecting the cornea that has required corneal transplants. He maintains that the driving from his home in Whitby to court in Sarnia has placed further strain on his eyes. He cannot drive at night. He has been required to read a significant body of written material. He acknowledges that on numerous occasions the Court accommodated his lack of appearances by bench warrants issued with discretion.
[67] He says that the inability to travel outside the Province has destroyed his investment business. He needs to travel to meet clients and attend where the funding banks are located. However, he has not requested that the Crown consent to a case by case assessment of any travel requests as offered by the Crown in May, 2011. He maintains that the related civil preservation order has frozen his accounts and assets and destroyed his reputation in his business community. Finally, he and his wife have separated due to the strain of these charges and he lives with a friend.
[68] Ms. Houle is clearly ill. She says the first preliminary hearing was adjourned as a result of a bout of colitis, a condition diagnosed before the charges but one that reacts poorly to stress. In addition during the time period of the charges she had surgery on her skull for a hematoma and has been diagnosed with cancer. Her cancer treatments have been debilitating and she wore a surgical mask during her evidence to protect her from airborne germs. It is her position that the stress and strain of the proceedings and the many court appearances have hindered her treatment and recovery. Further friends and associates of she and Mr. McGill want nothing to do with them as a result of the stigma of the charges.
BALANCING SOCIETAL INTERESTS
[69] As against the accuseds’ interest in a timely trial must be balanced the interests of society in law enforcement and concluding the matter by a trial on the merits. The more serious the offence the greater the interest by society in a trial (Morin p.12-13).
[70] The Crown alleges here frauds by the accused which include breaches of trust involving over twenty customers who lost approximately three million dollars. It is clear the community has a real interest in bringing the matter to trial.
CONCLUSION
[71] Morin sets out a guideline for acceptable institutional delay of 14 to 18 months for a two-stage process. The 18.5 months of delay I have found here is only slightly above the guideline. The relevant cases stress that the time periods discussed in Morin are to be guidelines only and that the result of the analysis cannot simply be a mathematical calculation.
[72] As the delay as I found it is close to the line I must consider whether the impact of prejudice pushes the delay into an unreasonable range.
[73] While there has been inherent and specific prejudice to accused, particularly Baron and Houle, it is the result of the overall length of time the charges have been outstanding, much of which time period has been occasioned by the accuseds’ struggles to retain counsel and have counsel complete the preliminary hearing. The effect of the bail provisions, while minimally limiting, could have been mitigated by applying for travel concessions or reviewing the condition itself.
[74] I recognize the significant societal interest here and with a delay of 18.5 months, even accepting all the proposed prejudice, I am not prepared to provide the extraordinary remedy of a stay. The applications for a stay by all accused are dismissed.
Signed “Bruce Thomas”
Bruce Thomas
Justice
Released: June 4, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
LEEANNE HOULE, TERRANCE HOULE, AND JOHN PAUL BARON
Applicants
– and –
LEGAL AID ONTARIO
Intervener
REASONS ON SECTION 11(b) APPLICATION
Bruce Thomas
Justice
Released: June 4, 2014