R. v. HAYHOW, 2015 ONSC 245

COURT FILE NO.: CJ-7695

DATE: 2015/01/13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. SUSAN HAYHOW

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: David S. Foulds, for the Crown

Michael W. Lacy, for the Applicant Susan Hayhow

HEARD: December 5, 2014

ENDORSEMENT

Background

[1] The applicant, Susan Hayhow, is charged with various offences alleging fraud over $5,000.00 in respect of conduct alleged to have occurred between July 25 2007 and July 14, 2009. She was originally charged with her co-accused and former husband Richard Hayhow. The charges against Richard Hayhow have been resolved and he was not a party to the argument of this application.

[2] The applicant applies pursuant to s. 653.1 of the Criminal Code to revisit the ruling of Hambly, J. on her application under sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms to stay the charges against her. That application was dismissed by Justice Hambly with brief oral reasons on September 6, 2013. Fuller reasons were released by him on May 29, 2014. The trial of the applicant and her co-accused was mis-tried before a jury on June 25, 2014. On July 25, 2014 a new trial was scheduled to commence with a jury on July 15, 2015.

[3] The background facts relating to the charges against the applicant and the process followed in the prosecution of the charges were detailed in Justice Hambly’s written reasons (see 2014 ONSC 3104 (currently subject to a ban on publication to protect the impartiality of the jury panel and jury)). What follows is a brief summary of the background facts.

(a) Alleged Facts Giving Rise to the Charges

[4] In 2004, the applicant (“Susan”) and her co-accused (“Richard”) started a non-profit corporation called Kids Link International (“Kids Link”). They subsequently took over a second corporation called St. Anne Centre (“St. Anne”). Utilizing the accused’s first names in this ruling is done for convenience and efficiency and no disrespect to them is intended.

[5] Both Kid’s Link and St. Anne operated under the name Imagine Adoption (“Imagine”) and both were engaged in fostering international adoptions, bringing children from Africa, South America and the Caribbean to Canada for the purpose of adoption by Canadian parents. Imagine had a Board of Directors. Susan was employed by Imagine as its Executive Director and Richard was employed as Chief Financial Officer.

[6] Susan and Richard separated in early 2009 and Richard resigned from Imagine in April of that year. By May and June, 2009 Imagine could not pay its expenses and ultimately made an assignment in bankruptcy in July of that year. The trustee in bankruptcy developed a proposal, in conjunction with a great number of prospective adoptive families who had earlier paid significant amounts to Imagine to process foreign adoptions, to permit Imagine to continue in operation.

[7] An investigation was undertaken into the financial records and affairs of Imagine at the instigation of a member of its Board of Directors. In or about July, 2009 the results of the investigation were provided to police who in turn launched an investigation into Richard and Susan’s activities. On April 7, 2011 the police arrested Richard and Susan. On May 2, 2011 a police officer swore an information charging them jointly with nine counts of defrauding either Kid’s Link or St. Anne on specified dates between July 27, 2007 and March 31, 2009 contrary to section 380(1) (a) or (b) of the Criminal Code. The information also charged them jointly with one count of breach of trust against Kid’s Link between January 1, 2007 and July 14, 2009 by converting monies to be held in trust for adoption, with intent to defraud it, in contravention of the trust and using the monies in a way not authorized by the trust, contrary to section 336 of the Criminal Code.

(b) Progress of the Matter Through the Courts

[8] The progress of the matter through the Ontario Court of Justice and the Superior Court of Justice was chronicled in detail by Justice Hambly in his written reasons. He noted that the Crown disclosure was voluminous, leading to a series of adjournments in the Ontario Court of Justice before dates for a preliminary inquiry could be scheduled. At the commencement of the preliminary inquiry on August 20, 2012, the Crown withdrew the breach of trust charge on the basis of its determination that there was no reasonable prospect of conviction of either accused on that charge. The preliminary inquiry was completed in two days and, on consent, both accused were committed to trial before a judge and jury in the Superior Court on all of the remaining charges.

[9] A judicial pretrial in the Superior Court was held on November 13, 2012. On November 30, 2012 at an assignment court the trial was set to commence on September 3, 2013. Pre-trial motions were set for June 24-26, 2013. The dates in June 2013 were cancelled on consent due to the applicant’s counsel’s involvement in another case which had taken longer than expected. The dates of September 4 to 6, 2013 were set to hear the 11(b) Charter application to be brought by both accused. After Justice Hambly delivered his oral reasons dismissing the section 11(b) application, the trial was set to commence, in accordance with counsel’s schedules, on June 16, 2014.

(c) First 11(b) Charter Application

[10] On the argument of the section 11(b) application before Justice Hambly, counsel agreed that the period to be analysed to determine if the Crown had violated the right of the accused to be tried within a reasonable time ran from May 2, 2011, when the accused were first charged, until the date that the trial was first set to commence on September 3, 2013.

[11] On the argument of the application, the position of the defence was that there had been a total delay contrary to section 11(b) of 19 months, consisting of Crown delay of three months and six days and institutional delay of 15 months and 20 days. The Crown’s position was that there had been a total delay applicable to section 11(b) of 11 ½ months, all of which was institutional, with five months and eight days attributable to the inherent time requirements of the case.

[12] In his reasons, Justice Hambly observed that the essence of the defence argument was that the breach of trust charge should never have been laid and that the large amount of disclosure made by the Crown, contributing to a considerable portion of the delay, was attributable to that charge, the remaining charges being simple and relatively minor. The defence argued that the case could have moved quickly to trial if the breach of trust charge had never been laid. Mr. Foulds, who had carriage of the case for the Crown, filed an affidavit and testified on the application. In light of this, the application was argued by Mr. Wilson on behalf of the Crown. In his testimony, Mr. Foulds conceded that the Crown never had a reasonable prospect of conviction on the breach of trust charge.

[13] Justice Hambly identified that the position taken by the defence raised the issue of whether the Crown indeed had a reasonable prospect of conviction on the breach of trust charge and upon analysis of that issue, he ultimately concluded that it did. In doing so, Justice Hambly relied extensively on the case of R. v. Gopher, Moccasin and Night 2005 SKQB 243 (Sask. Q. B.), the facts of which he found to be closely analogous to the facts of the present case.

[14] Justice Hambly also concluded that the laying of the breach of trust charge did not make the disclosure more voluminous than it otherwise would have been. He found that the disclosure associated with the breach of trust charge consisted of the same material relating to the other charges covering the same period. In the end, Justice Hambly determined that the total amount of time that could be attributed to institutional delay in bringing the case to trial was 11 ½ months. He found this period of delay to be less than the lower range deemed to be acceptable in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 (S.C.C.).

[15] Justice Hambly considered the issue of prejudice suffered by both accused resulting from the delay, concluding that “the undoubted pain that [both accused] have suffered and continue to suffer is much more as a result of their being charged than the delay in bringing the case to trial [and that] it is also the result of the bankruptcy which attracted much publicity almost 2 years before the charges were laid.”

[16] In balancing the length of the delay in light of the other factors identified in Morin, such as the reasons for the delay and prejudice to the accused, Justice Hambly observed that he considered the charges against the accused to be very serious and “whatever prejudice they may have suffered by way of delay pales in comparison to the public interest in bringing this case to trial.”

(d) Application to Re-open s. 11(b) Charter Ruling

[17] Following receipt of Justice Hambly’s written reasons for dismissal of her section 11(b) application, the applicant brought an application to re-open the ruling to permit her counsel to make submissions with respect to the R. v. Gopher case and the arguments related to it, on the basis that counsel had not been given an opportunity to address the case during submissions. The applicant also requested that Justice Hambly recuse himself from continuing to preside over the 11(b) application and/or any subsequent trial on the basis of the existence of what her counsel submitted was a reasonable apprehension of bias. Those applications were dismissed by Justice Hambly with oral reasons and the trial commenced before him with a jury.

(e) Mistrial

[18] During the trial, the Crown called a forensic accountant who had been engaged to carry out an analysis in reference to the flow of funds from the adoption agency, the personal accounts of both accused and the corporate credit card accounts. The theory of the Crown was that both accused had used funds of the corporations for personal expenses and had failed to properly account for the money in the corporate records. The cross examination of the forensic accountant relating to documents that were in the possession of the police suggested that there had been an attempt on the part of the co-accused Richard to properly record transactions involving personal expenses in the books of the corporations.

[19] Following the testimony of the forensic accountant, the Crown proposed to call a witness named Tim Sullivan who had been an accounting clerk employed in 2009 by the corporations’ outside accountants Graham Mathew in connection with the preparation of the financial statements for the corporations for the fiscal year ending in 2008. In the course of his preparation interview, Mr. Sullivan disclosed that he had reviewed the accounting firm’s working file for the fiscal year ending in 2007. In the course of his review of the file, Mr. Sullivan came across a document dated March 28, 2008 signed by his predecessor Ms. Sandra Marsh which indicated that she had spoken to Richard about how certain personal expenses paid out by Kid’s Link on his and Susan’s behalf were to be dealt with by the corporation. In particular, Ms. Marsh noted that she had discussed with Richard that $19,674.35 paid out of the corporation to various contractors were personal expenses and were to be either treated as taxable benefits and included on T-4 slips issued to the Hayhows or paid back. She went on to note that Richard confirmed that the personal expenses had not been included on the T-4’s and that they would be paid back to Kid’s Link during the next year.

[20] The disclosure of Ms. Marsh’s note appeared to run counter to the Crown’s theory that the accused had purposely failed to disclose personal expenses drawn from the corporations to accountants and auditors.

[21] The information received from Mr. Sullivan was conveyed by the Crown to counsel for both accused and was brought to the attention of the trial judge. The Crown conceded that the timing of the receipt of the new information was such that it materially impacted the fairness of the trial and that the exceptional remedy of a mistrial was necessary to cure any unfairness. Justice Hambly acceded to the request and a mistrial was declared on June 25, 2014.

(f) Setting New Date for Trial

[22] The parties appeared at an assignment court on July 25, 2014, at which time the Crown confirmed its intention to proceed with the prosecution of the charges against both accused at a new trial. The presiding judge confirmed that the court could provide trial times for a two or three week jury trial any time commencing October 6, 2014. Counsel’s available dates were canvassed and it was determined that the earliest available date for the new trial to commence, based on the availability of all three counsel, was April 6, 2015. Although applicant’s counsel Mr. Lacy was not available on that date, alternate counsel from his firm would be available to conduct the trial, if necessary. The applicant expressed a desire to have Mr. Lacy to conduct the trial and it was therefore set for July 15, 2015.

[23] The applicant gave notice to the court that she wished to bring an application pursuant to section 11(b) of the Charter prior to the commencement of the trial and December 5, 2014 was set for the hearing of the present motion.

Guiding Principles

[24] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 24(1) provides that anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. It has long been held that an appropriate and just remedy for breach of section 11(b) may be the imposition of a stay of proceedings (see R. v. Askov et al 1990 CanLII 45 (SCC), [1990] 2 SCR 1199 (S.C.C.)).

[25] In determining whether the accused’s right to be tried within a reasonable time has been denied the court is required to carry out a balancing of the following relevant factors:

(1) the length of the delay,

(2) waiver of time periods,

(3) reasons for the delay, including

(a) inherent time requirements of the case;

(b) actions of the accused:

(c) actions of the Crown;

(d) limits on institutional resources, and

(4) prejudice to the accused.

(see R.v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at p. 13)

[26] Counsel for the applicant concedes that, as the present application is brought pursuant to the Charter, it is caught by section 653.1 of the Criminal Code, which provides as follows:

In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.

[27] In the case of R. v. Davis 2012 ONSC 5526 (S.C.J.) Baltman, J. considered what is meant by the phrase “interests of justice” in section 653.1 (at para. 15). She observed that the phrase is used throughout the Criminal Code and the jurisprudence analysing it establishes the following principles:

• the phrase signals the existence of a judicial discretion to be exercised on a case-by-case basis,

• interests of justice encompass broad-based societal concerns and the more specific interests of the particular accused,

• the phrase takes into consideration both the interests of the accused as well as the state,

• the interests of justice also encompass the integrity of the criminal process, including the bringing of finality to litigation and avoiding the time and expense inherent in the re-litigation of issues.

[28] At para. 16 Justice Baltman observed that the wording of section 653.1 indicates that there is a presumption in favour of preserving rulings made at the earlier trial which is only defeated if, in the particular circumstances of the case, the court is satisfied that it would not be in the interests of justice to proceed on the basis of the previous rulings.

[29] In the recent case of R. v. Windebank 2014 ONSC 5135 (S.C.J.) Phillips, J. observed that section 653.1of the Criminal Code was evidently meant as an attempt to minimize the consequences of a mistrial on court resources and that “if the reason for the mistrial is independent of the ruling, the ruling should not go down with the trial. Re-litigation of issues already fairly decided is to be avoided.” (at para. 5)

[30] In a case decided in the British Columbia Supreme Court, R. v. N.J.S. 2013 BCSC 2512 (B.C.S.C.), Gaul, J., after conducting a review of the jurisprudence touching on interpretation of the phrase “interests of justice” throughout the Criminal Code, offered the following formulation of the factors to be considered in determining whether it would be in the interests of justice to find rulings made prior to a mistrial to be not binding in the new trial under section 653.1:

a) whether there is any new evidence to be presented on the proposed rehearing of the application,

b) whether there are any new arguments to be presented on the rehearing of the application and whether those arguments have any obvious merit,

c) the interests of the accused, including any articulable prejudice that is created by not being able to re-litigate an issue previously decided, and

d) the interests of the public, including ensuring matters proceed to trial in a timely and efficient manner and without any unnecessary repetition of proceedings.

[31] In my view, the formulation suggested by Justice Gaul in R. v. N.J.S. is useful and instructive and is not inconsistent with the observations made by Justice Baltman in R. v. Davis or by Justice Phillips in R. v. Windebank.

Analysis

(a) General Observations

[32] It is self-evident that in a case where there was a previous unsuccessful application for a stay on the basis of unreasonable delay pursuant to section 11(b) of the Charter, a mistrial, which will necessarily involve further delay unless the new trial is commenced immediately, will invite a reconsideration of whether the accused’s right to be tried within a reasonable time has been denied.

[33] Section 653.1 does not specifically address itself to the revisiting of an earlier delay application under section 11(b) following a mistrial. Indeed, the section, on its face, appears to be primarily concerned with rulings relating to the disclosure or admissibility of evidence. The phrase “or the Canadian Charter of Rights and Freedoms” does have the effect of capturing a ruling on an application based on section 11(b) within its ambit, however the phrase “if the rulings are made - or could have been made - before the stage at which the evidence on the merits is presented” suggests that the section is primarily directed towards evidentiary rulings.

[34] On an application under section 11(b) the court is to assess whether delay has been unreasonable by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that section 11(b) seeks to protect (see R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.), at para. 18).

[35] As observed in Godin at para. 18, this assessment often and inevitably leads to a minute examination of protected time periods and factual questions concerning why certain delays occurred. However, a mathematical or administrative formula is not to be applied, but rather a judicial determination is to be made, balancing the interests which section 11(b) is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay (Godin at para. 18, citing Morin at p.787).

[36] Since a mistrial will, in most cases, result in at least some additional delay, it would ordinarily be necessary and appropriate to consider certain of the factors identified in Godin afresh in light of the changed circumstances, including the new cumulative length of the delay to the commencement of the new trial, the reasons for the mistrial and the delay occasioned by it, any delay in scheduling the new trial and the reasons for it, as well as a fresh balancing of the various factors in light of the new cumulative delay. However, in my view, there will be findings within an earlier section 11(b) ruling which need not be revisited following a mistrial unless it is found to be in the interests of justice to do so, utilizing the formulation in R. v. N.J.S. These would include the evaluation of the reasons for the delay up to the date set for the original trial, and the nature and extent of the prejudice suffered by the accused by reason of the delay to that time.

Responsibility for the Mistrial

[37] The Crown submits that, since neither it nor the police investigator was aware before the preparation interview with Mr. Sullivan that anyone at the Graham Mathew firm had discussed with Richard the proper treatment of payments on account of personal expenses to him and the applicant, the reason for the mistrial was unforeseen. It further submits that in these circumstances the court should treat the ensuing time period as neutral, citing the case of R. v. Khan, 2011 ONCA 173 (C.A.) at para. 63. In that case, the trial judge declared a mistrial following one day of evidence and neither the Crown nor the defence bore any responsibility for it. The Court of Appeal observed that the sole purpose of the mistrial had been to preserve the appearance of fairness and impartiality and stated, at paragraph 63, that “such unfortunate events necessarily increase the inherent time requirements of the case” and therefore the time following the mistrial until the first date offered for re-trial should be treated as neutral for the purposes of the section 11(b) analysis.

[38] The lead police investigator Constable Shawn McLinden gave viva voce evidence on the present application. In the course of his examination Constable McLinden acknowledged the following:

• that he was inexperienced in fraud investigations at the time of the investigation leading to the charges

• that he was under-resourced at the time of the investigation

• there were no impediments to his being able to speak to members of the Graham Mathew accounting firm

• if he had wanted to review any of the files of the accounting firm he could have done so

• he never spoke to the accountant at Graham Mathew in charge of the engagement by the corporations

• he was aware that other people at Graham Mathew were involved in the engagement but he did not reach out to interview any of them

• the mandate of the forensic accountant, engaged to assist in the investigation, was limited to conducting a cash flow analysis, and he was not engaged to carry out a larger audit of the financial affairs of the corporations

• none of the expense report documents were provided to the forensic accountant and neither he nor the forensic accountant carried out a tracing of the credit card statements to the expense reports

• although further investigation with respect to the expense reports was carried out during the trial, such investigation could have been done long before the charges were laid or the trial started

• he could have obtained the note made by Ms. Marsh and referenced by Mr. Sullivan through investigative efforts

• he did not turn his mind to looking at the working papers of the accounting firm, although he could have looked at them had he done so

• it is possible that he did not turn his mind to the working papers due to his inexperience

• the fact that Richard discussed with Ms. Marsh how the personal expenses disclosed on the expense reports should be accounted for on the books of the Corporation goes to the level of transparency that existed with respect to those expenses

• in the course of the investigation he never asked Mr. Sullivan if the accused had previously accounted for personal expenses, nor had he asked whether Richard had ever disclosed to any representative of the accounting firm the fact that money from the Corporation had been used for personal expenses

• after the mistrial he carried out further investigations, including accompanying Mr. Sullivan to Graham Mathews, picking up the working file and interviewing three additional people namely Ms. Marsh, Mr. Peter Graham, the partner in charge of the engagement, and Mr. Mike Arnt, another employee of the firm involved in the review engagement

• he could have conducted the investigations which he conducted after the mistrial prior to the trial.

[39] Mr. Foulds, for the Crown, acknowledged that the new information discovered following the mistrial impacted the way in which the prosecution against Richard was resolved.

[40] In my view, based upon the acknowledgements by Constable McLinden referred to above, responsibility for the events leading to the mistrial rests with the police and hence, in relation to the section 11(b) analysis, with the Crown.

[41] A prosecution under section 380(1) requires proof, as an essential element of the offence, that the accused used deceit, falsehood or other fraudulent means, to defraud the public or any person. The Crown submitted that the deceit, falsehood or other fraudulent means alleged to have been utilized in the present case consisted of a failure on the part of the accused to disclose to Imagine’s board of directors their use of corporate funds to pay personal expenses. This theory would inevitably lead to an inquiry as to whether the accused had made such disclosure to the accountants who had been engaged by the Board to carry out a review of the books and records of the organization.

[42] I am entitled to take judicial notice that, when carrying out a review engagement for a particular fiscal year, the accountants for the corporations are expected to meet with management personnel to go over any issues or questions discovered during the course of the review and to discuss any adjusting or correcting entries which may be required. I am further entitled to take judicial notice that the accountants would take notes of such discussions and keep them in their working file. In this respect, it is noted that judicial notice may be taken of facts which are (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy (see R. v. Find 2001 SCC 32, [2001] 1 S.C.R. 863 (S.C.C.) at para. 48). In my view, these facts fall within these categories.

[43] However, I agree with counsel for the applicant that it is not necessary to resort to judicial notice to support the fact that staff of the accounting firm met with Richard in the course of carrying out their review of the financial records of the corporations. This is exemplified by the evidence of Mr. Sullivan at the preliminary inquiry, at pages 25-32 of the transcript. Moreover, the involvement of Mr. Graham as the lead accountant on the file and of Ms. Marsh, Mr. Sullivan’s predecessor, was disclosed at pages 12 and 15 of the transcript.

[44] I find that the police ought to have discovered the existence of the note made by Ms. Marsh, by the exercise reasonable diligence in their investigation, prior to the charges being laid, or at least well in advance of the trial. Had this been done, the mistrial would have been avoided.

(b) Delay Following the Mistrial

[45] Counsel for the applicant argues that, discounting the delay between April 6 to July 15, 2015, which was occasioned by the applicant’s choice of counsel, all of the delay from the date of the mistrial to April 6, 2015 (9 months and 11 days) is attributable to Crown or institutional delay on the basis that it would not have been incurred but for the mistrial, which was the fault of the Crown. I do not agree with this submission. The fact is that the court was in a position to offer trial times commencing October 6, 2014. The fact that there was no time from that date until April 6, 2015 when all three counsel were available is reflective of the inherent time requirements of the case. The fact that there were two accused in a joint trial contributed to the difficulty in finding dates when all counsel would be available for trial. To ascribe all post-mistrial delay occasioned by the unavailability of one or other of the counsel, regardless of its length, to Crown or institutional delay would, in my view, be unreasonable.

[46] The one month period from the date of the mistrial until the assignment court on July 25, 2104 should be deducted from the period of institutional delay, as should a further period of one month to prepare for trial, including the assembly of a fresh jury panel, as inherent time requirements of the case. In my view, the delay period from August 25 to October 6, 2014, or one month and eleven days, may be ascribed to institutional delay occurring after the mistrial.

(c) Application of Section 653.1 – Re-litigating the Earlier 11(b) Ruling

[47] Counsel for the applicant argues that, in applying section 653.1 of the Criminal Code, it would always be in the interests of justice to litigate a section 11(b) Charter application afresh following a mistrial, except in exceptional circumstances. Moreover, he argues that, in this particular case, it is in the interests of justice to do so because Justice Hambly’s decision was irreparably tainted by his mischaracterization of the fraud being prosecuted. Counsel submits that Justice Hambly’s reasons reveal that he treated the allegations against the two accused as involving a breach of trust, notwithstanding that the Crown withdrew the breach of trust charge and acknowledged that it never did have a reasonable prospect of conviction on that charge.

[48] I do not accept the proposition that it would always be in the interests of justice to litigate all aspects of a section 11(b) application afresh following a mistrial. The applicant has acknowledged that section 653.1 applies to a ruling prior to the mistrial under section 11 (b). Accordingly, the purpose of the section, namely to minimize the consequences of a mistrial on court resources, has application. For the reasons that I have already indicated, there are findings within Justice Hambly’s earlier section 11(b) ruling which need not necessarily be revisited following the mistrial, in particular, his evaluation of the reasons for the delay and the ascribing of responsibility for such delay up to the date set for the original trial.

[49] Justice Hambly found there had been 11 ½ months of Crown or institutional delay. The applicant has not led new evidence nor has she advanced any new arguments which would discharge the onus on her to demonstrate that it would not be in the interests of justice to apply Justice Hambly’s findings with respect to responsibility for any delay up to the date of the first trial. Nor has any articulable prejudice to the applicant been created by not being able to re-litigate this issue.

[50] The applicant led no new evidence to challenge Justice Hambly’s finding that the large volume of disclosure was not only necessary for the breach of trust charge but also for the individual fraud charges covering the same period. Accordingly, no delay could be ascribed to the Crown by reason of having “overcharged” through the laying of the breach of trust charge.

[51] I therefore find the total period of time to the date of the new trial attributable to Crown or institutional delay to be less than 13 months (11 ½ months to the date of the first trial as found by Justice Hambly and one month and 11 days following the mistrial). This period of delay is less than the lower range suggested in Morin of 14 to 18 months.

[52] The suggestion by counsel for the applicant that Justice Hambly’s analysis was tainted by a mischaracterization of the nature of the charges against the accused went largely, as counsel acknowledged, to the balancing exercise carried out by Justice Hambly. It is not necessary for me to deal with the submission respecting tainting as I find that it is appropriate that I conduct a fresh balancing exercise in light of the new aggregate period of Crown or institutional delay in bringing the matter to trial.

[53] With respect to prejudice to the applicant, Justice Hambly noted that Susan has been unable to find employment because of the publicity surrounding the charges. She has been unable to do charity work because she cannot get a police clearance. He also noted that she has become estranged from her mother and her daughters. He concluded that the undoubted pain that Susan has suffered and will continue to suffer is much more as a result of her being charged than the delay in bringing the case to trial. He also observed that it is also a result of the bankruptcy of Imagine, which attracted much publicity, almost two years prior to the charges being laid.

[54] The applicant led no fresh evidence of actual prejudice to her arising from the delay to the time of the first trial. No new arguments were advanced with respect to the existence and impact of prejudice suffered by Susan by reason of the delay in prosecuting the charges up to the time of the first trial. The applicant has therefore not discharged the onus on her of showing that it would not be in the interests of justice to apply Justice Hambly’s findings with respect to prejudice suffered by her resulting from delay to the time of the first trial.

(d) Prejudice to the Applicant Occasioned by the Mistrial

[55] The applicant led no evidence of actual prejudice resulting from the delay occasioned by the mistrial. By the time of the new trial in July 2015, it will have been over 50 months following the laying of the charges against her for the matter to come on to trial. Based upon cases having even shorter periods of delay in the range of 35 months, it must be inferred that the applicant has experienced significant prejudice. The time awaiting trial can be “exquisite agony” as Cory, J. observed in Askov, and the stigma of being under a public cloud should not be lightly dismissed (see R. v. Williamson, 2014 ONCA 598 (C.A.) at para. 57).

(e) Balancing

[56] As indicated, it is appropriate for me to carry out a fresh balancing exercise between the interests of the applicant and the societal interest in a trial on the merits.

[57] Whether the nature of the allegations against an accused establishes a heightened societal interest in a trial on the merits is a relevant consideration in the balancing exercise (see R. v. Seegmiller, (2004) 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.) at para. 25).

[58] Although the corporations operating as Imagine were not registered charities (as confirmed by a counsel in submissions before me) in my view, given the nature of their activities in facilitating international adoptions, there was a significant public aspect to their existence and functioning. As indicated in the applicant’s factum on the original 11(b) application, upon which the applicant continues to rely, Kid’s Link was a not-for-profit international adoption agency governed by provincial legislation. This was not the case of a not-for-profit organization in the nature of a social club existing only for the benefit and enjoyment of its members. Prospective adoptive parents were drawn from the larger community and no doubt placed significant reliance on the organization and on its governing board and management to help them achieve an extremely important objective to them, namely becoming parents to a child or children in need of adoption. The continued viability of the organization was of utmost importance to these prospective parents and affected their vital interests.

[59] The alleged conduct of the applicant, if proven, likely impacted the continued viability of the organization, and contributed to its insolvency, thereby jeopardizing the hopes and dreams of its clients in becoming adoptive parents. Given this public aspect to the facts underlying the charges there is, in my view, a heightened societal interest in a trial of the charges against the applicant on their merits.

[60] As indicated above, there is significant inferred prejudice to the applicant in having to wait in excess of 50 months to be tried on the charges that she faces, and this should not lightly be dismissed. However in carrying out the balancing exercise it must be recalled that only 13 months of the total time that it will take for the matter to come on for trial is attributable to Crown or institutional delay. This period is less than the range of acceptable delay laid down by the case-law, as represented by Morin.

[61] I am of the view that society’s interest in the trial of the charges against the applicant on their merits outweighs the undoubted prejudice that the applicant has suffered and continues to suffer by reason of the lengthy delay in bringing the matter on trial. The application to revisit the ruling of Justice Hambly and to stay the charges pursuant to sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms is therefore dismissed.

D.A. Broad

Date: January 13 , 2015