R. v. Rosenthal, 2017 ONSC 6523

R. v. Rosenthal, 2017 ONSC 6523

Court File and Parties

CITATION: R. v. Rosenthal, 2017 ONSC 6523

COURT FILE NO.: CR-17-10000160-0000

DATE: 20171031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

STUART ROSENTHAL
Applicant

R. Weinberg, for the Respondent

P. Burstein, for the Applicant

HEARD: October 5 and 6, 2017

RULING ON SECTION 11(b) CHARTER APPLICATION

SCHRECK J.:

1Stuart Rosenthal wanted to have his trial on fraud and other charges in the Ontario Court of Justice (“OCJ”) and to have it as quickly as possible. Unfortunately for him, some of his three co-accused wanted to have a trial in the Superior Court of Justice (“SCJ”) and were not as enthusiastic about proceeding expeditiously. As a result, Mr. Rosenthal is now scheduled to have a trial in the SCJ which is anticipated to end just over 31 months after he was charged. Mr. Rosenthal submits that this would result in a violation of his s. 11(b) Charter right to a trial within a reasonable time as it exceeds the 30-month ceiling established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. The Crown submits that some of the delay was caused by Mr. Rosenthal or, in the alternative, that the case was exceptionally complex and some of the delay resulted from the parties’ reasonable reliance on the law that existed prior to the release of Jordan.

2I would dismiss the application. I do not agree that Mr. Rosenthal caused any of the delay, nor do I agree that this case is exceptionally complex. However, I am of the view that the relatively short period by which this case exceeds the ceiling can be explained by the parties’ reasonable reliance on the law as it existed prior to Jordan.

I. HISTORY OF THE PROCEEDINGS

A. June 30, 2015 – November 7, 2015: The Charge to the First Focus Hearing

3The applicant was arrested on June 30, 2015 and charged with fraud over $5000, conspiracy to commit fraud and possession of proceeds of crime over $5000. He was released on a $50,000 recognizance with his then wife, Li Wang, as a surety. He was charged together with three other individuals: Mohamed Shaikh, Remy Boghossian and Petar Bozinovsky. The charges are based on allegations that Mr. Shaikh applied for five bank loans based on false representations and false documentation and that he was assisted by the other accused.

4No disclosure was available when the applicant first appeared in court on July 27, 2015. The Crown suggested that the matter return in a week, but Mr. Burstein, counsel for the applicant, suggested that it return on August 28, 2015 to minimize unnecessary court appearances. Some initial disclosure was provided on August 24, 2015, following which Mr. Burstein contacted counsel for the other accused in an attempt to expedite the process of scheduling a judicial pre-trial (“JPT”). On the third appearance on September 17, 2015, a JPT was set for October 27, 2015.

5During the October 27, 2015 JPT before Lipson R.S.J., the parties discussed the possibility of having a trial in the OCJ. It would appear that during the JPT or the period following it, all of the accused indicated a wish to have an OCJ trial with the exception of Mr. Boghossian, who was undecided. By virtue of s. 536(4.2) of the Criminal Code, the trial could proceed in the OCJ only if all accused agreed.

6A further JPT was scheduled for November 30, 2015. Five days before it was to take place, counsel for Mr. Boghossian, Kirkor Apel, advised the other parties that he was “no longer available” to attend the JPT on that date. A new JPT date of December 11, 2015 was then agreed upon. Prior to that date, Mr. Burstein wrote to Mr. Apel inquiring whether he had made a decision as to the mode of trial. Mr. Apel did not respond.

7By the December 11, 2015 JPT, Mr. Boghossian had still not indicated whether he would agree to have a trial in the OCJ. A further JPT was scheduled for February 2, 2016. On January 5, 2016, Crown counsel wrote to Mr. Apel inquiring whether he had made a decision as to his election. The record is unclear as to whether he received a response.

8By February 2, 2016, Mr. Bozinovsky had changed his mind and now wished to have his trial in the SCJ. Mr. Boghossian remained undecided. Mr. Burstein suggested that if Mr. Boghossian agreed to have an OCJ trial, Mr. Bozinovsky could be severed from the other three as he was alleged to have been involved in only one of the five loans. The Crown did not agree to severance.

9Four weeks of “target dates” commencing on January 9, 2017 for the trial or preliminary inquiry were set on February 2, 2016. Further JPTs were held on February 29, 2016 and April 20, 2016. On the latter date, counsel for Mr. Boghossian indicated that he had now decided to have a trial in the SCJ. A focus hearing was scheduled for November 7, 2016.

10Following discussions between Mr. Burstein and Mr. Apel in October, Mr. Boghossian changed his mind and agreed to have a trial in the OCJ. Mr. Bozinovsky, however, continued to want his trial in the SCJ and the Crown refused to sever him.

B. November 7, 2016 – January 9, 2017: The Focus Hearings and the Severance Application

11The first focus hearing took place on November 7, 2016 before Greene J. Mr. Apel failed to attend. The possibility of a trial in the OCJ was discussed. Following the focus hearing, on November 15, 2016 Crown counsel wrote an e-mail to the other counsel stating the following:

At the last focus hearing we once again discussed the possibility of severance. I want to make my position clear on this issue, which is I will not consent to severance. However, I will consent to re-election under s. 561(1)(a) to a trial in the Ontario Court of Justice (OCJ), as long as all four accused agree to an OCJ trial beginning on January 9, 2017. This offer is open until Friday November 25, 2016 and will be resigned [sic] thereafter. [Emphasis in original]

12On November 22, 2016, counsel for Mr. Shaikh, John Navarette, filed an application to be removed as counsel of record. On November 24, 2016, the applicant filed a Notice of Application in the SCJ alleging an apprehended future breach of s. 11(b) of the Charter and seeking an order severing Mr. Bozinovsky from the other three accused as a s. 24(1) remedy.

13The focus hearing continued on November 25, 2016, at which time Mr. Navarette’s application to be removed was denied. The focus hearing continued on December 1, 2016. At that time, Crown counsel advised the Court that it was his understanding that Mr. Shaikh now wished to have a preliminary inquiry. Mr. Navarette offered to clarify his client’s position, but never did so as the discussion turned to other matters.

14The applicant’s severance application was heard in the SCJ on December 7, 2016 by Code J. On the day before the hearing, Mr. Navarette notified Mr. Burstein that Mr. Shaikh had changed his mind and now wanted to have a preliminary inquiry, a fact which Mr. Burstein acknowledged weakened the argument he was advancing before Code J.

15In written reasons released on December 22, 2016, Code J. dismissed the application. In doing so, he stated:

First, it is unclear to me whether there has been, or will be, any violation of s. 11(b) of the Charter. The record is simply inadequate and the Application is premature. If the matter proceeds to preliminary inquiry on January 9, 2017, and it is conducted efficiently and effectively, and if this Court then expedites any resulting trial and conducts that trial efficiently and effectively, there will have been no violation of s. 11(b).

He also stated:

. . . [T]here is a strong presumption in favour of a joint trial where co-accused are alleged to have been involved in a joint enterprise. Severance is exceptional in circumstances such as those alleged in the present case. See, e.g., R. v. Chow (2005), 2005 SCC 24, 195 C.C.C. (3d) 246 at paras. 47-8 (S.C.C.). At some point, delays by one co-accused can become so prejudicial to the other co-accused that severance should be granted, in order to prevent a s. 11(b) violation of the co-accused’s rights. See, e.g., R. v. Vassell (2016), 2016 SCC 26, 337 C.C.C. (3d) 1 (S.C.C.). That point has not been reached in this case, mainly because Greene J. effectively managed the case when one co-accused was threatening to cause delay.

C. January 9, 2017 – February 2, 2018: The Preliminary Inquiry to the Trial

16The preliminary inquiry began as scheduled on January 9, 2017. It ended on schedule on February 2, 2017 with submissions respecting committal. Greene J. delivered her reasons on committal 12 days later on February 14, 2017. All of the accused were committed on all counts with the exception of the applicant, who was discharged on two counts.

17The first appearance in the SCJ was on March 7, 2017 before McMahon J. By this point, Mr. Boghossian and Mr. Shaikh were no longer represented by counsel. McMahon J. suggested that they immediately set a trial “target” date, a proposal with which Mr. Burstein agreed. As a result, January 8, 2018 was set to commence the trial. Mr. Burstein inquired as to whether this was the earliest available date. McMahon J. responded as follows:

It’s not the earliest date for the court, but for this trial it is because these gentlemen are out of custody and if we have murder cases that need to get set they’re going to take priority. So, I can clearly say the earliest date I can offer you is the date that you’ve selected.

Mr. Shaikh was told by McMahon J. that if he retained a lawyer, that lawyer would have to be available to start the trial on January 8, 2018.

18At the next appearance on April 4, 2017, Mr. Boghossian and Mr. Shaikh were still unrepresented. The Court was advised that Loera Shemesh, counsel for Mr. Bazinovsky, may have a scheduling conflict if the trial began on January 8, 2018. McMahon J. did not agree to change the trial date. Mr. Boghossian and Mr. Shaikh remained unrepresented over the course of several subsequent appearances. On July 25, 2017, it was confirmed that the trial would commence on January 8, 2018 and was anticipated to finish on February 2, 2018.

D. Evidence of Prejudice

19An affidavit by the applicant, upon which he was cross-examined, was filed on the application. He testified that the stress of the outstanding charges resulted in the breakdown of his relationship with his wife, who was initially his surety. As a result, he had to change sureties. At some point, the applicant’s ex-wife contacted Crown counsel and alleged that she had been the victim of criminal activity at the hands of the applicant. As a result, the Crown threatened to apply to cancel the applicant’s bail. The applicant alleges that the Crown ought to have referred the matter to the local police service and that it was improper for him to have become involved in the applicant’s dispute with his wife, who had made false allegations against him in the past. He feared that the Crown would continue to become involved in his matrimonial dispute. Because of this, he ultimately settled with his ex-wife in family court on terms that he believed were less favourable than they would have been had the matter been litigated.

II. ANALYSIS

A. The Analytic Framework

20The manner in which claims of unreasonable delay violating s. 11(b) of the Charter are now to be determined was set out Jordan and more recently affirmed in R. v. Cody, 2017 SCC 31. The first step is to calculate the period of time from the charge until the anticipated end of the trial (the “total delay”) and to then subtract any delay waived or caused by the conduct of the defence. If the resulting number (the “net delay”) is below the ceiling set out in Jordan (30 months in the SCJ and 18 months in the OCJ), then the delay is presumptively reasonable unless the defence can show that it made a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. If the number is above the ceiling, then the delay is presumptively unreasonable unless the Crown can show that there are exceptional circumstances, such as the complexity of the case, which justify the delay. For cases that began before Jordan was decided on July 8, 2016, the Crown can try to demonstrate that the parties reasonably relied on the law as it existed at the time, sometimes referred to as “the transitional exceptional circumstance”.

B. The Total Delay

21The applicant was charged on June 30, 2015 and the anticipated end of the trial is on February 2, 2018. The total delay is therefore 31 months and three days.

C. Defence Delay

(i) Types of Defence Delay That Should be Deducted

22Defence delay is divided into two components: (1) “delay waived by the defence”; and (2) “delay that is caused solely by the conduct of the defence”: Cody, at para. 26. Waiver may be implicit or explicit, provided it is informed, clear and unequivocal: Jordan, at para. 61; Cody, at para. 27.

23The concept of delay caused solely by the conduct of the defence was explained in Cody (at paras. 28-30):

In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66).

However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64).

(ii) The Respondent’s Submissions Respecting Defence Delay

24The respondent submits that two periods of time totalling several months should be deducted as waiver or defence delay. First, on the first appearance on July 27, 2015, no disclosure was provided and the Crown suggested that the matter return in a week. Because the Crown was unable to say whether disclosure would be provided by then, Mr. Burstein suggested that the matter return on August 28, 2015. The respondent submits that this should be considered as waiver. There is no merit to this submission. No disclosure was in fact provided until August 24, 2015, so it turned out that Mr. Burstein was correct that nothing would have been served by returning to court in a week. The trial would not ultimately have taken place any earlier.

25The second period of time which the respondent submits should be considered as waiver or defence delay is the time that was taken during the several JPTs between October 2015 and February 2016 when the parties were attempting to determine whether all of the accused would agree to have a trial in the OCJ. I fail to see how this can be considered to be defence delay. First, the record clearly demonstrates that the Crown participated fully in the attempts to secure an agreement. More importantly, the applicant’s attempts to enable the trial to proceed in the OCJ can hardly be described as being akin to a “defence tactic aimed at causing delay” or “frivolous requests”. These were clearly “defence actions legitimately taken to respond to the charges”.

26In my view, there was no defence delay in this case. To the contrary, the applicant did everything he could to have his trial take place as early as possible. As a result, the net delay remains at 31 months and three days. While this does not exceed the ceiling by much, it clearly exceeds it. The ceilings set out in Jordan are just that. They are not guidelines. When they are exceeded by even a small amount of time, the delay is presumptively unreasonable unless the Crown can establish that there were exceptional circumstances. In this case, the Crown submits that there are exceptional circumstances because of the complexity of the case and relies as well on the “transitional exceptional circumstance”.

D. Were There Exceptional Circumstances?

(i) Complexity

27The concept of complexity as an exceptional circumstance justifying delay in excess of the ceiling was explained in Jordan (at para. 77):

As 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-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

28The respondent submits that this case was complex because it involved multiple fraud allegations against four accused, the use of forged documents through numerous shell companies and foreign banks, a time frame spanning several years, the appointment of a referee to review files for privilege, and voluminous disclosure. Counsel for the respondent also points out that there were multiple JPTs and focus hearings.

29In my view, this case was not complex, as that term is used in Jordan and its progeny. While the alleged fraud may span several years and involve large amounts of money, the case is essentially about five loan applications based on false information. There is no evidence that the appointment of a referee to review files seized from Mr. Boghossian’s office for privilege issues caused any delay. The need for multiple JPTs and focus hearings arose because of Mr. Boghossian’s initial refusal to make a decision as to his election as well as retainer issues involving the other accused. In my view, but for the transitional nature of this case, which I discuss below, it could have and should have been tried within the 30-month ceiling.

30I note as well that the complexity of the case has already been adjudicated upon, albeit in a different context. In August 2017, Mr. Shaikh brought a “Rowbotham” application for state-funded counsel before Akhtar J. of this Court. He argued, among other things, that the case was too complex for him to be able to represent himself adequately. The Crown resisted the application. In dismissing it (R. v. Shaikh, 2017 ONSC 4826), Akhtar J. stated (at para. 20):

The notion that this case has complexities requiring the assistance of counsel is superficially attractive. On closer examination, however, it is clear that there are very few legal intricacies involved. As has been noted, there are no Charter motions to be argued. The Crown’s allegations are quite simple: the applicant obtained loans through misrepresentations and the use of false documents. Any complexity flows from the manner in which the applicant’s financial matters were conducted. With his background, the applicant is more likely to understand the factual issues than a lawyer not ordinarily versed in business practices.

I recognize that the determination respecting complexity was made in a different context. However, it appears that the Crown took the position before Akhtar J. that the test for a Rowbotham order had not been met, including that it was not so complex that a non-legally trained accused could represent himself adequately. If the allegations were simple enough for Mr. Shaikh to properly represent himself, then they were simple enough for the Crown to be able to bring the case to trial within a reasonable time.

(ii) The Transitional Exceptional Circumstance

(a) The Delay Prior to Jordan

31The transitional exceptional circumstance was explained in Cody (at para. 68):

Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin [1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771].

32Most of the delay in this case occurred prior to the preliminary inquiry, primarily because of the co-accused’s failure to make a decision as to his election. At the time this was happening, all of the parties would have viewed this time as neutral: R. v. Gopie, 2017 ONCA 728, at para. 138. As a result, the Crown cannot be faulted for failing to take further steps at that time.

33I accept that in deciding whether proceeding jointly against several accused is in the interests of justice, the Crown must consider whether the s. 11(b) rights of any of the accused are in jeopardy. One accused’s rights cannot be held “hostage” by the actions or inactions of a co-accused: Gopie, at para. 171; R. v. Vassell, 2016 SCC 26, at para. 7; R. v. Manasseri, 2016 ONCA 703, at para. 323. It may well be that it would have been unreasonable for the Crown to refuse to sever Mr. Bozonovsky if the other three had elected to have a trial in the OCJ. Crown counsel appears to have conceded this during the argument before Code J., despite having earlier apparently refused to agree to severance under any circumstances. However, I need not decide this issue because there was ultimately never a time at which all three accused agreed to a trial in the OCJ. By the time Mr. Boghossian finally decided to have a trial in the OCJ, Mr. Shaikh decided not to. The applicant submits that if the Crown had been willing to sever, the co-accused might have made different decisions. This may be, but I am not prepared to speculate about what may have occurred had the facts been different than they were.

(b) The Severance Application

34In any event, the applicant was not content to be governed by the Crown’s decision with respect to severance and brought the application before Code J. In dismissing the application, Code J. stated (at para. 29):

At some point, delays by one co-accused can become so prejudicial to the other co-accused that severance should be granted, in order to prevent a s. 11(b) violation of the co-accused’s rights. . . . That point has not been reached in this case, mainly because Greene J. effectively managed the case when one co-accused was threatening to cause delay.

35While I appreciate that I am not bound by Code J.’s decision, I ought to follow it as a matter of judicial comity. As a result, I conclude that up until the time of the hearing before Code J., the point at which the public interest in a joint trial must give way to s. 11(b) concerns had not yet been reached. As discussed below, the matter proceeded at a reasonable pace after that point.

(c) The Proceedings Following the Severance Application

36The conduct of the Crown must be assessed in light of what Code J. said in his ruling (at para. 29):

If the matter proceeds to preliminary inquiry on January 9, 2017, and it is conducted efficiently and effectively, and if this Court then expedites any resulting trial and conducts that trial efficiently and effectively, there will have been no violation of s. 11(b).

37The applicant submits that the preliminary inquiry was not conducted efficiently and effectively. He points to various portions of the preliminary inquiry where the Crown did not have witnesses ready or where issues arose which the Crown ought to have anticipated but did not. While the applicant may be correct that there were shortcomings in the manner in which the Crown conducted the preliminary inquiry, it was ultimately completed within the time allotted. This was largely due to Greene J.’s efforts to ensure that court time was used efficiently. In my view, when Code J. spoke of the preliminary inquiry being conducted “efficiently and effectively”, he meant that it ought to be completed as scheduled, which it was.

38Similarly, once the matter reached this Court, trial dates were immediately set and were the earliest available.

(d) Conclusion Respecting the Transitional Exceptional Circumstance

39The trial in this matter would have taken place well below the Jordan ceiling but for the delay caused by the co-accused at the early stages. At that time, however, the parties would have understood such time to be neutral and behaved accordingly. In my view, this is a clear example of a transitional exceptional circumstance. I note that time was scheduled in the OCJ even before Mr. Boghossian had come to a decision about his election. I have no doubt that this step would have been taken even earlier if Jordan had already been decided.

40I have considerable sympathy for the applicant’s position. He did everything he could to have the matter dealt with expeditiously in the OCJ and could not because of the dilatory conduct of the co-accused. I accept that he has suffered prejudice that has been exacerbated because the proceedings did not end in early 2017, as they would have if the trial had been in the OCJ. However, s. 11(b) guarantees a trial within a reasonable time, not a trial in the court of one’s choosing, and the amount of time that will be reasonable depends on the level of court in which the trial takes place. Despite the applicant’s wishes, because of s. 536(4.2) of the Criminal Code his trial will be in the SCJ, where the ceiling is 30 months. For reasons I have explained, the fact that it will take place a short period of time in excess of that ceiling can be accounted for by the parties’ reasonable reliance on the law as it existed during the early stages of the proceedings, when most of the delay took place.

III. DISPOSITION

41For the foregoing reasons, the application is dismissed.