REASONS FOR DECISION

[1] The applicant-defendant, Carlos Pavao seeks a stay of this proceeding pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that there has been unreasonable delay and actual prejudice in this matter proceeding to trial. The trial is currently scheduled to proceed on January 8, 2018 for an estimated four weeks. Mr. Pavao recently changed counsel, to Mr. Walter Fox, who appears before me today and advised that he will not be seeking an adjournment of the this trial date.

[2] Carlos Pavao was charged April 24, 2012 with fraud contrary to Section 380(1)(a) of the Criminal Code in relation to stock investments involving 11 individuals. There are 11 counts in the Indictment.

[3] This application was originally contemplated in or about March, 2016 or before the release of R. v. Jordan 2016 SCC 27 on July 8, 2016 but not argued until October 27, 2017 before me.

[4] It should be noted that as part of evaluating the merit of the defendant’s application that the original Superior Court trial date of April 4, 2016 was adjourned due to medical issues effecting Carlos Pavao and his counsel, as was the second trial date of January 9, 2017. This defence delay obviously played a role in the ability of the defendant to actively pursue steps that needed to be taken. For example, when the third party suspect application was raised in court March 9, 2016, counsel for Carlos Pavao submitted the application was integral and could be “brought in one week”. However, the completed material was not served and filed until February 14, 2017 or two weeks after a court imposed deadline for same. Of concern is whether this can fairly be interpreted below as a sign of complexity or merely health issues of the defendant and his counsel.

[5] Similarly, this application was raised in court March 24, 2016. The return date for argument was not secured before July 8, 2016 when R. v. Jordan, supra was released and changed the appropriate approach and preparation required.

[6] The Crown concedes after deducting defence delay from total delay there is about 37 months of delay or more than the 30 month limit set as the presumptive ceiling in R. v. Jordan, supra. This means, the delay is presumptively unreasonable. As a result, the onus is on the Crown to establish the presence of exceptional circumstances (R. v. Jordan, supra at paragraph 47).

[7] Exceptional circumstances are described in R. v. Jordan, supra (at paragraph 81) and can arise from a discrete event or the case’s complexity. The Crown submitted exceptional circumstances apply as this is an exceptionally complex case as defined by R. v. Jordan, (paragraphs 77 to 81). Alternatively, the Crown submitted this case meets the transitional exceptional circumstances described in R. v. Jordan, (at paragraphs 94-96).

[8] In R. v. Jordan, (at paragraph 77), a variety of criteria are described as making the case complex, the key ones to be assessed here being the volume of disclosure, the number of witnesses, expert evidence and the number of charges.

[9] Is this matter particularly complex? In attempting to determine this issue, I had the benefit of the Court of Appeal’s review of how to apply R. v. Jordan, in R. v. Coulter 2016 ONCA 704. The criteria the Crown must meet involves the nature of the evidence or issues (or both) which require an inordinate amount of trial or preparation time. One cannot rely on the seriousness or gravity of the offence.

[10] If this case is found to be complex, “such that the time the case has taken is justified, the delay is reasonable and no stay will issue” R. v. Coulter, supra (at paragraph 52).

[11] In support of the defendant’s position the case is not complex, Carlos Pavao attempted to summarize the factual matrix as a loosely described investment club with funds placed in a numbered federal corporation controlled by he and a third party. The corporation traded through an account at a brokerage firm. In this regard, it should be noted that the third party suspect application was to be heard on November 16, 2017. While the identity of the third party has been known since the outset, the fact a third party suspect application is disputed and proceeding within two months of the trial date suggests greater rather than less complexity. I am advised, by counsel, that application was dismissed. However, in my view, that does not change the conclusion of greater rather than less complexity in the circumstances.

[12] Carlos Pavao also submits he believes the $1.2 million of funds advanced by investors would be used for the purpose intended, that is, to invest in a publically traded mineral company by way of private placement. His defence further intends to show that it was the third party who made inappropriate and unauthorized trades resulting in the loss of the investor’s funds.

[13] As part of evaluating the complexity, the analysis must go beyond what statements are made by counsel and evaluate the relevant parameters. In this regard, the Crown relied on the statement made by defence counsel to the Justice of the Peace on June 26, 2012 shortly after the charges arose, “It’s a complex case, your Worship.” The purpose was to counter the defendant’s submissions before me to the contrary. I do not find this to be determinative. What is more relevant, for example, are such things as the amount of disclosure and the length of the preliminary hearing. Here, while the defendant describes it as delay in completing disclosure, there is significance that disclosure was delivered on five different dates between June 26, 2012 and September 17, 2014. The preliminary hearing commenced on April 29 to May 6, 2014, and April 27 to April 30, 2015 or as many as 10 days. The defendant sought particulars from each of the 11 complainants and sought to hear evidence from 13 witnesses. I conclude, this raises the level of complexity.

[14] The Crown has served an expert report and the defendant may also call an expert with regard to the financial transactions which occurred. The Crown submitted its current list of witnesses is up to 19. This also raises the level of complexity. It should also be noted that 11 counts of fraud dealing with 11 complainants is more complex than a single count although one would expect a pattern to emerge such that the level of complexity may not be as obvious as this might otherwise suggest. Crown counsel relied on the comments by Justice Gillese in R. v. Cranston, 2008 ONCA 751 (at paragraph 38) that “fraud cases typically require substantial preparation time and court time” and will involve experts. This matter appears to be of that nature.

[15] Based on these factors, I conclude the case is particularly complex and the additional time taken by the Crown was justified. As a result, no stay will issue and the application is dismissed.

[16] If I am incorrect in this conclusion, I also wish to deal briefly with the alternative position of transitional exceptional circumstances where the delay exceeds the presumptive ceiling. To quote R. v. Coulter, supra (at paragraph 56) this occurs “when the Crown satisfies the Court that the time the case took is justified based on the parties’ reasonable reliance on the law as it previously existed.” The Court of Appeal repeats the direction given in R. v. Jordan, (at paragraphs 96 and 97) that a contextual assessment is required with a variety of factors identified and to be considered. Counsel for Carlos Pavao submitted the framework for the analysis reverts back to R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771 and needed to consider the following four factors in order to balance the individual’s right to fair and timely trial with the societal good of law enforcement:

the length of the delay;
waiver of time periods;
the reasons for the delay, including

(a) inherent time requirements of the case,

(b) actions of the accused and Crown; and

prejudice to the accused.

[17] In this regard, the length of the delay and the defence waiver of time period has already been addressed. Counsel focused on reasons for the delay. At the heart of the Crown’s position was the defendant’s actions revealing he was not ready to proceed to trial. Examples used are as described above regarding preparation and completing materials for pre-trial applications such as this and the third party suspect application. From my review of the transcripts of the numerous court appearances, particularly those after disclosure was completed on September 17, 2014, there was no effort by the defendant to move the case along. To the contrary, the Crown was accepting dates that required it to switch counsel assigned to the matter (see, for example, transcript dated September 9, 2016 at page 9).

[18] Finally, I not only heard submissions about prejudice to the accused but Carlos Pavao was cross-examined before me on his affidavit sworn August 29, 2017 filed in support of this application which detailed the alleged physical and emotional harm suffered by Carlos Pavao following his arrest on April 24, 2012. The Crown contested reliance on the three exhibits attached to Carlos Pavao’s affidavit. Each exhibit was a letter from a doctor treating Carlos Pavao offering details of Carlos Pavao’s medical condition.

[19] The first letter, from Dr. Sunny Johnson, psychiatrist, dated April 21, 2016 referenced inpatient treatment at Credit Valley Hospital beginning in March, 2016 for a major depressive order which was impairing his psychosocial functioning and for which his treatment was ongoing.

[20] The second letter, from Dr. Hans Strauss, cardiologist, dated December 5, 2016 referenced assessments from July 5, 2016 for chest discomfort, the discovery of coronary artery disease and the plan to conduct urgent surgery on January 11, 2017.

[21] The third letter, from Dr. Irvin Klinghoffer, family physician, dated June 2, 2017 differed from the other medical information given the statement that Carlos Pavao’s marriage and family relationship had suffered as a result of “his court proceedings and his mental condition”. Dr. Klinghoffer opined that “it is imperative that his legal proceedings are completed as soon as possible so that he can organize his life and future with respect to family and health issues.”

[22] The concern regarding this information was that it was not properly tendered in affidavit form and thus not subject to cross-examination. However, in my view, the only aspect of the medical comments which directly supported Carlo Pavao’s position was that of Dr. Klinghoffer which I have specifically repeated. These comments were undermined by Carlos Pavo’s cross-examination evidence that his life had other legal proceedings and stressors in it including:

(a) being separated from his spouse for some time now but continuing to reside in the basement of the matrimonial home where his spouse and two of their three children also reside;

(b) two civil actions which have proceeded to judgments against him for in excess of $500,000.00 arising from the same factual matrix before me:

(c) not being able to afford a new lawyer after his existing counsel suffered a medical event in April, 2016 which delayed setting a trial date in this matter; and

(d) despite his coronary and depressive problems, he continues to do sales work on and off for a carpentry business that provides him with a vehicle to use.

[23] In my view, this evidence, as a demonstration of prejudice to the accused, was insufficient to conclude the transitional exceptional circumstances ought not to be decided in favour of the Crown. In R. v. Cody, 2017 SCC 31, the Court, (at paragraph 68), states “transitional exceptional circumstances assessment involves a qualitative exercise”. I accept the Crown may rely on the fact “the time the case is taken is justified based on the parties reasonable reliance on the law as it previously existed”. R. v. Jordon, (at paragraph 96).

Conclusion

[24] As a result, I conclude the Crown has met its burden under both the complex case and the transitional exceptional circumstance analyses. The application by Carlos Pavao to have the charges against him stayed due to unreasonable delay pursuant to Section 11(b) of the Charter is hereby dismissed.

Mr. Justice G. Dow

Released: November 27, 2017

CITATION: R.v Pavao, 2017 ONSC 6873

COURT FILE NO.: CR-15-70000276-0000

DATE: 20171127

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CARLOS A. PAVAO

Applicant

REASONS FOR DECISION

Mr. Justice G. Dow

Released: November 27, 2017

Her Majesty the Queen v. Carlos A. Pavao, 2017 ONSC 6873

Case Summary

REASONS FOR DECISION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2