COURT FILE NO.: 15/1348 DATE: 20170620 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – APRIL VUONG and HAO QUACH Applicants

COUNSEL: M. Morris, for the Respondent Self-Represented

HEARD: June 5, 2017

Reasons for decision SECTION 11 (b) Application for stay of proceedings

SPROAT J.

INTRODUCTION

1The Applicants are charged with fraud over $5,000 committed between October 1, 2007 and October 30, 2012.

2This allegation is largely, if not entirely, based upon the Applicants conduct that also resulted in a proceeding before the Ontario Securities Commission (“the OSC”). The OSC settlement agreement signed by the Applicants dated November 11, 2013 includes as agreed facts that:

(a) the Applicants received $12.4 million from investors in return for promissory notes;

(b) the investors were promised an annual rate of interest ranging from 12% - 30% and advised the investments were guaranteed so there was no risk; and

(c) approximately $5.6 million was never repaid.

3The Applicants request a stay on the basis of an infringement of their s.11(b) right, under the Canadian Charter of Rights and Freedoms, to be tried within a reasonable time.

4The Applicants each filed affidavits and the Crown did not cross-examine. The Crown filed the affidavit of Cst. Jackson, who is now the officer in charge of the investigation, and she was cross-examined by the Applicants. Transcripts of all court appearances were filed as well as other relevant documentation.

THE LAW

5In R. v. NY and Phan 2016 ONSC 8031, paragraphs 14 – 33, Fairburn J. provided a helpful summary of the Jordan principles. The very recent decision of R. v. Gordon 2017 ONCA 436 is also instructive. I apply these principles in reaching my decision. I will also refer further to the case law when analyzing particular issues.

6These reasons were prepared in draft prior to the release of R. v. Cody, 2017 SCC 31 on June 16, 2017. That decision confirmed aspects of Jordan and my analysis. I did not, therefore, ask for their submissions based upon Cody.

JORDAN ANALYSIS

Total Delay

7The Applicants, who are husband and wife, were arrested on October 16, 2013. The scheduled end of the original trial date was March 27, 2017. The Applicants then waived s.11(b) in order to bring this application. For present purposes, therefore, the total delay is 41.25 months. (Allocated periods of delay will not total to 41.25 months due to rounding numbers.)

Defence Delay

8The Crown argues that March 21, 2014 to March 31, 2015 is defence delay because the Crown wanted to set a date for a Judicial Pre-Trial (“JPT”) on March 21, 2014 and it in fact was not held until March 31, 2015.

9It was on March 21, 2014 that the defence received what Cst. Jackson characterized as “Wave Three” of disclosure consisting of an additional 5.8GB of material. The defence, not unreasonably, wanted to review this material before scheduling a JPT. Unless the defence could assess the nature and possible significance of the additional disclosure setting a date for a JPT, with any confidence it could proceed, would be difficult.

10Much of the rest of this one year period was marked by additional disclosure and counsel having discussions. There were court appearances as follows:

(a) April 28 – the Crown advised it was gathering a final wave of disclosure expected in three weeks.

(b) May 26 – the Crown asked for an adjournment to June 23 to allow the Crown to provide a complex brief.

(c) June 23 – the Crown expected to deliver additional disclosure that week. The Crown agreed it was reasonable to adjourn to allow the defence to review that disclosure. Cst. Jackson’s evidence was that this additional disclosure was delivered June 25 which was not a court date.

(d) July 28 – the agent for defence counsel referred to disclosure that was only delivered July 17 and indicated the defence needed time to review it. The presiding justice made it peremptory on the defence to set a JPT date on the next appearance.

(e) September 15 – the defence wanted to meet with the Crown prior to setting a JPT date.

(f) September 29 – the Crown and defence wanted to adjourn for further discussions.

(g) November 24 – the JPT was scheduled for January 22, 2015.

(h) January 22 - defence counsel got off the record due to retainer issues. The Applicants required time to review the disclosure and the JPT was, therefore, adjourned to February 19.

(i) February 19 – the Crown realized that disclosure contained solicitor and client communications and an order was made requiring the Applicants to return disclosure materials.

(j) March 6 - the Crown provided some additional disclosure.

(k) March 31, 2015 – the Crown provided disclosure on USB keys edited to remove solicitor-client communications. A seven day preliminary hearing was scheduled for December 14 – 18 and January 4 – 5.

11As stated in para. 63 of Jordan, “defence delay is delay caused solely by the conduct of the defence”. Examples from Gordon, para. 6 are the defence requesting a delay before setting a trial date or asking for to a later trial date to allow the accused more time to finalize the retainer of counsel.

12The only delay caused solely by the Applicants in this period of March 21, 2014 to March 31, 2015 is the approximately .75 month from January 22, 2015 which was the scheduled date for the JPT, when defence counsel got off the record, until February 19 when the JPT was supposed to be held. The JPT scheduled for February 19, however, appears to have been derailed because the Crown had to retrieve the disclosure and edit out solicitor-client information.

13The only other period of defence delay is the 4.5 month period January 8 – May 24, 2016 during which the Applicants obtained adjournments to pursue legal aid applications and appeals and to consider a Rowbotham application.

Exceptional Circumstances

14The net delay is, therefore, 36 months, significantly above the Jordan ceiling. This delay is presumptively unreasonable. The Crown submits, however, that there are exceptional circumstances that justify the delay. The Crown relies only on the particular complexity of this case as constituting exceptional circumstances. As explained in Jordan:

77As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accuseds, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

15Of the hallmarks listed the only ones that apply to our case are voluminous disclosure and charges covering a long period of time. The other hallmarks do not apply:

(a) there are only approximately 13 complainants who claim to have been defrauded and approximately five other witnesses.

(b) according to the Crown the charges could have proceeded to trial without any expert evidence. The officer in charge did, however, meet with an accounting firm in March, 2014 but the fee quoted for a forensic accounting report exceed the PRP fraud bureau budget. In July 2016 the OSC agreed to have a staff accountant prepare a forensic accounting report which was served on January 13, 2017. Obtaining this report did not add any additional delay.

(c) there is only one charge.

(d) there are no pre-trial applications and no novel, complicated or multiple issues. The central issue, as in most fraud trials, appears to be what representations did the Applicants make to the complainants to cause them to part with their money.

(e) while there are two accused they were for a long time represented by the same experienced defence counsel and are now self-represented, so there is no delay related to accommodating the schedules of multiple defence counsel or by reason of the Applicants assuming conflicting positions.

16I do not, therefore, regard this case as a particularly complex one.

Transitional Exceptional Circumstances

17The Jordan majority instructs that:

96First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

97Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings.

98On the other hand, the s. 11 (b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11 (b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.

18The Brampton courthouse is, despite the valiant efforts of many justice system participants, plagued by lengthy, persistent and notorious institutional delays. The court house opened in 2000 with 15 courtrooms assigned to the Superior Court of Justice, including seven criminal jury courtrooms. We often have two or three multi-month jury trials ongoing at any time which creates significant scheduling problems.

19In early 2012, the Ministry of the Attorney General recognized that Brampton had a serious shortage of jury courtrooms and committed to provide three modular courtroom additions including two for juries. The modular courtrooms were, however, never constructed. On January 5, 2015 the Ministry announced that instead of modular courtroom additions, an addition to the court house would be built. The earliest occupancy date for the new facility is December, 2017, assuming there are no delays.

20As a consequence it is now common practice in Brampton for juries to be picked in Brampton and then transported daily to Kitchener, Milton or Orangeville for trial. This has introduced additional inefficiencies and delay. The travel burden makes it harder to find willing jurors and, therefore, it takes longer to select juries. The additional travel results in an increased incidence of trial participants being late and, in inclement weather, simply not being able to come to court. This can bring a jury trial to a halt.

21The Jordan majority also instructs that the court should consider how the case would be analyzed under pre-Jordan principles in order to assess whether the manner in which the case was conducted and proceeded would have been considered reasonable under the previous law. I will, therefore, consider how this case would be decided under the pre-Jordan principles and then return to the question of whether there was reasonable reliance on the former law.

MORIN FRAME WORK

22In R. v. Morin, [1992], 1 S.C.R. 771, Justice Sopinka identified the factors to be considered by the Court, at para. 31, as follows:

1. the length of the delay;

2. waiver of time periods;

3. the 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 (e) other reasons for delay, and

4. prejudice to the Accused.

23Justice Sopinka, at para. 31-32 provided guidance as to the application of the factors stating:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.

The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable.

The Four Factors

a. Factor One - The Length of the Delay

24The total delay is approximately 41 months which obviously raises a question as to its reasonableness.

b. Factor Two - Waiver of Time Periods

25The Applicants did not waive their s.11(b) rights during the period of delay I am considering.

c. Factor Three - Reasons for the Delay

26In a run of the mill case a period of three months is often regarded as a reasonable intake period and part of the inherent time requirements of this case. Given the voluminous disclosure in this case I regard the 5 month period October 16, 2013 to March 21, 2014, when the Second Wave of disclosure was provided, as neutral time. It was also part of the inherent time requirement that counsel be able to review the disclosure and I allow 1.25 months for that which takes us to May 1, 2014. (While the disclosure was voluminous I am mindful of the point made by Mr. Quach that measuring the disclosure in GBs may be misleading in that disclosure of certain material, such as the complainant’s video statements, represented a significant percentage of the total GBs of disclosure.)

27The inherent time requirements are often referred to as “neutral” time in the Morin framework. The defence wanted additional time to renew disclosure and to meet with the Crown prior to setting a JPT and then both sides wanted to adjourn for further discussions. I can’t say that this time was inherently “necessary” but both sides acquiesced in the delay and were content that the case proceed as it did. I, therefore, refer to this as “other neutral time”.

28I accept that there was significant delay in obtaining disclosure concerning cell phones and other devices seized by the police at or about the time of arrest in mid-October 2013. Disclosure of what was found on the devices was not provided until June 25, 2014. The contents of the devices, however, were peripheral to the fraud allegations. The delay in providing that disclosure did not create any additional delay in the criminal proceeding. There is no right to insist that all disclosure be complete before setting dates to proceed.

29I earlier reviewed the period up to March 31, 2015 in discussing the Jordan framework. I allocate the period, May 1, 2014 to March 31, 2015 as follows:

(a) Crown delay in providing disclosure – 1.75 months (May 1 – June 25, 2014). I allocate this to the Crown as disclosure of materials in the possession the Crown should have been completed by May 1.

(b) other neutral time – 5 months (June 26 – November 24, 2014). The defence requests time to review disclosure and then both parties ask for time to discuss matters.

(c) inherent time requirement – 2 months (November 25, 2014 to January 22, 2015) (As per R v. Tran 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) para. 34 requiring a judicial pre-trial to set a trial date is a necessary case management tool in busy centres and so part of the inherent time requirements of the case).

(d) defence delay - .75 month (January 23 – February 19, 2015)

(e) Crown delay regarding retrieval and editing disclosure material – 1.5 months (February 20 – March 31, 2015)

30I allocate the 8.5 month period April 1, 2015 to the start of the preliminary inquiry on December 14, 2015, as 1 month inherent time requirement and 7.5 months institutional delay. This recognizes that the parties would not have been prepared to immediately start the preliminary. I regard the .75 month period December 15 – January 8, 2016 from committal to the first appearance in this court as part of the inherent time requirement. The 4.5 month period January 8 – May 24, 2016 is defence delay involving the Applicants applying for legal aid, being denied, appealing and contemplating a Rowbotham application.

31I note that when the Applicants appeared in Assignment Court on January 8 and 22 and March 18, 2016 Durno J., as part of a general announcement, advised all counsel and parties that if there were potential 11(b) issues relating to delay to date, or that would result from the trial dates being set, it was the responsibility of counsel to bring that to his attention. Further, when on May 24, 2016 Durno J. scheduled the trial to commence February 13, 2017 he specifically advised the Applicants that “I’m prepared to revisit it and, if necessary, move the trial date earlier…”

32For the 8.75 month period from May 25, 2016 to the scheduled trial date of February 19, 2017, I allocate one month to the inherent time requirement to recognize that the parties needed some time to prepare for trial. Durno J. offered to reduce the institutional delay, however, the Applicants did not take him up on that offer. I am confident that Durno J., if asked, could have found a trial date at least 3 months earlier. I, therefore, allocate 4.5 months to institutional delay and the 3 months that could have been saved as other neutral time. The trial was scheduled to take 1.5 months which is part of the inherent time requirement.

33The reasons for delay add up as follows:

(a) inherent time requirement – 12.75 months

(b) other neutral time – 8 months

(c) institutional delay - 12 months

(d) Crown delay – 3.25 months

(e) defence delay – 5.25 months

Total = 41.25 months

d. Factor Four - Prejudice to the Accused

34According to Justice Sopinka the starting point is that:

Section 11(b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion (p.23-C.C.C.).

35Inherent in the s. 11(b) protection, and as referred to in Morin by Justice Sopinka at para. 61-62, is the concept that “prejudice to the Accused can be inferred from prolonged delay” and the fact that it is the duty of the Crown to bring the Accused to trial and that there is no legal obligation on the Accused to assert his 11(b) right.

36Having made these points, Justice Sopinka did observe, at para. 62, that, “Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay”.

37The right to liberty relates to the restrictions on liberty resulting from pre-trial incarceration and/or restrictive bail conditions.

38The right to security of the person relates to the anxiety, concern and stigma of exposure to criminal proceedings.

39The right to a fair trial relates to attempting to ensure that trials take place while evidence is available and fresh.

40The Applicants filed similar affidavits addressing prejudice. They complain that as a result of actions by the police their business law firm “fired” them. On the record, I have no way of determining the validity of that complaint. To pursue that issue would probably be impossible without a waiver of privilege.

41The Applicants also complain that disgruntled investors have sued them and their family members. It was presumably a disgruntled investor who established a “defamatory website” aprilvuong.com. A disgruntled investor threatened Ms. Vuong. From the OSC statement of agreed facts investors lost $5.6 million. I, therefore, attribute any stigma or stress brought about by disgruntled investors to the admitted conduct of the Applicants and not to anything to do with the criminal prosecution.

42Mr. Quach also states that at the time of arrest the Applicants were on the verge of completing a multi-million dollar sale or licence of gaming software they had developed. This, however, would simply be a consequence of the laying of the criminal charge. My focus on this application is mainly on the incremental prejudice caused by any unreasonable delay in the criminal prosecution

43Mr. Quach also states that he has been hampered in finding employment because employers do extensive checks including online searches and criminal record checks. Again the conduct the Applicants admitted at the OSC would deter most employers regardless of whether a criminal charge was laid.

44The bail conditions were not terribly restrictive and do not logically support the Applicants contention that the conditions impeded their ability to conduct their “professional business freely” and make a living. Again, as a matter of logic it is their admitted conduct that understandably impedes their ability to work in accounting and financial services.

45I am satisfied that the passage of time has not impaired the Applicants’ interest in a fair trial. The complainants were videotaped. Much of the additional evidence consists of banking and other records. The OSC Statement of Allegations is dated October 31, 2012. The Applicants were represented by experienced counsel. The OSC allegations cover much of the same ground as the fraud charge. As a result the Applicant’s recollections of the events were no doubt memorialized in some manner back in 2012.

46As to inaction by the accused, the fact that the Applicants did not take Durno J. up on his offer to move the trial to an earlier date also supports the inference they were not overly concerned about delay and not suffering great prejudice.

e. Balancing the Factors

47In Morin Justice Sopinka, referring to the Askov guidelines of a period of Crown or institutional delay of eight to ten months in the Ontario Court and six to eight months in the Superior Court, stated:

I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay.

A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors.

The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. (p. 21 – C.C.C.)

Balancing Factors

48The period of institutional – Crown delay in this case is approximately 15.25 months. This puts it within the Morin guidelines.

49Balancing the length of the delay, I also take into account that the delay had some impact on the liberty and security interests of the Applicants (although not exceeding what might be considered normal or expected prejudice) while causing no prejudice to the fair trial interests of the Applicants. As a secondary factor only, I take into account the societal interests in having trials held promptly and in bringing those accused of serious crimes to trial. I also note that in Jordan, at para. 96, the majority pointed out that under the Morin framework prejudice and the seriousness of the offence were often decisive. Here we have serious charges and very little prejudice that can be attributed to the delay. Balancing these factors, in my opinion, the period of delay is not unreasonable.

CONCLUSION

50On the Morin principles I would not have granted a stay of proceedings. Jordan was decided July 8, 2016. By that time the trial date had been set.

51Referring to Jordan at paragraphs 96-98:

(a) the Crown’s reliance on the previous law was reasonable;

(b) Brampton is a jurisdiction with significant institutional delay problems, which necessarily take time to change.

(c) there is no evidence of repeated mistakes or missteps by the Crown or police.

52The Crown has, therefore, satisfied me that the transitional exceptional circumstance applies in that the time the case has taken was justified based on the parties’ reasonable reliance on the previous law.

53The application to stay proceedings is, therefore, dismissed.

Sproat J.