CITATION: R. v. Villanti, 2017 ONSC 7130
COURT FILE NO.: CR-17-00000029-0000
DATE: 20171215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VINCENT VILLANTI, REVENDRA CHAUDHARY, SHANE SMITH, DAVID PRENTICE and ANDREW LLOYD
Applicants
M. Lockner and H. Song, for the Crown
P. Riley for Vincent Villanti
S. Hutchison for Revendra Chaudhary
C. Rudnicki for Shane Smith
T. Mathews for David Prentice
C.S. White for Andrew Lloyd
HEARD: September 14, 15, 18 and 19, 2017
SECTION 11(B) UREASONABLE DELAY, ADJOURNMENT AND SEVERANCE APPLICATIONS
a.j. o’marra j.
[1] The applicants in this matter Revendra Chaudhary, David Prentice, Shane Smith, Andrew Lloyd and Vincent Villanti are scheduled to commence trial September 25, 2017 on the indictment alleging fraud over a value of $5,000 and conspiracy to commit an indictable offence. They were arrested on this matter March 26, 2014.
[1] All applicants have brought a s. 11(b) application for unreasonable delay seeking a stay of trial proceedings scheduled to commence September 25, 2017 pursuant to s. 24(2) of the Charter of Rights and Freedoms. If the delay application is not granted three applicants, Revendra Chaudhary, Andrew Lloyd and Vincent Villanti seek an adjournment in order to retain counsel to act for them at trial. If granted, David Prentice and Shane Smith, unrepresented, seek to be severed from a joint trial with the other accused to continue on to trial September 25, 2017.
[2] At the conclusion of hearing these applications, brief reasons were provided in which the undue delay application was dismissed, the adjournment application was granted and the severance application denied. The following is an expansion of the reasons for dismissing the delay application, with the brief reasons for the adjournment and severance rulings attached as Appendix A and B respectively.
Nature of the Case
[3] With respect to the nature of the allegations, as I understand from the material submitted by the Crown respondent, in April 2012, the Royal Canadian Mounted Police commenced an investigation into an alleged tax avoidance scheme said to have been conducted by the applicants between 2009 and 2013. Earlier A search warrant had been executed June 6, 2013 at two of the accused’s office locations, which led to the arrests in March 2014. Further investigation of the continuance of the alleged scheme and execution of another search warrant at the accused’s business premises resulted in the time frame being expanded to December, 2014.
[4] The basic allegation is that the accused, in various roles, conducted and developed an investment program through a firm called the Integrated Business Consultants Association (IBCA), and a related company, Synergy, that raised over $13,000,000 from investors on the promise that their investment would be used to provide small businesses with start-up capital. The investors were told they would be able to claim any business losses against their personal income taxes.
[5] It is alleged that little to no such investments were made, but used, rather to pay commissions, salaries and expenses of the accused and companies. Investors were informed of inflated losses which, when claimed by them on their personal taxes, were subsequently disallowed by the Canada Revenue Agency, which in turn subjected the investors to ongoing assessments.
[6] In this matter, while the matter started out with six accused, one, Losciano has resolved his matters after the preliminary inquiry. The applicants have had a number of lawyers acting for them during the proceedings. Of the remaining five accused, David Prentice, Shane Smith and Andrew Lloyd were represented by Mr. Joseph Sereda from the bail hearing releases March 26, 2014, until he was removed for conflict of interest having acted for Villanti pre-charges during the police investigation; Mr. Villanti was represented by Mr. Alan Gold until the conclusion of the preliminary inquiry, then briefly by Mr. William Trudell in the Superior Court during the judicial pre-trial appearances; and Mr. Chaudhary was represented initially by Mr. Allan Weisberg until the during the initial judicial pretrial discussions in the Ontario Court, then by Mr. Michael Caroline up to setting the date for trial in the Superior Court, then removed at request of the applicant for loss of confidence.
[7] At the time the applications were heard September, 14, 2017 just prior to the commencement of the trial September 25, 2017 only David Prentice had counsel prepared to try the matter. Shane Smith, unrepresented for trial asserted he was prepared for trial. Chaudhary, Andrew Lloyd, Vincent Villanti and Shane Smith had retained counsel to bring the s. 11 b) application, but not to act for them for upcoming trial.
[8] In failing to obtain a stay of proceedings, Chaudhary, Lloyd and Villanti applied for an adjournment, waiving s. 11 b) rights to a new trial date. Prentice and Smith sought severance of their matters from the others if an adjournment was granted. The Crown respondent opposed the adjournment and severance.
Section 11 b) Unreasonable Delay
[9] The total time between the arrests of the applicants and the anticipated completion of the trial is approximately 44 months. The time exceeds the presumptive ceiling of 30 months as set out in R. v. Jordan, [2016] 35 CCC (3d) 403 for 11(b) delay in a matter proceeding to trial in the Superior Court of Justice.
[10] In Jordan, the Court sets out a framework to consider as to whether there has been unreasonable delay as follows:
First, there is to be a calculation of the total delay. In this case it is 44 months to anticipated completion of the trial.
Second, the court is to subtract what is considered to be, or found to be a defence delay, which results the “net delay”.
Third, if the net delay exceeds the presumptive ceiling of 30 months, it is presumptively unreasonable. The Crown, in that instance however, may rebut the presumption by establishing the presence of exceptional circumstances that justify the delay.
Fourth, the exceptional circumstances fall under two categories, (1) discreet events, and (2) when it is a particularly complex case.
If the Crown is unable to establish exceptional circumstances the result is a stay of proceedings.
[11] The former s. 11 b) assessment regime under R .v Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 required consideration and balancing of four factors by the court:
i) The length of the overall delay;
ii) waiver of any time periods;
iii) reason for the delay, a) including inherent time requirements of the case, b) actions of the accused, c) actions of the Crown, d) limits on institutional resources, e0 other reasons;
iv) prejudice to the accused
[12] Morin set out guidelines for delay of 8 to 10 months of institutional and/or Crown delay in the provincial court, and 6 to 8 months in the Superior Court, for a total of 14 to 18 months to trial.
[13] Although the Jordan framework is applicable to cases already in the system, the court observed that for cases in which the delay exceeds the presumptive ceiling, as in this case, a transitional exceptional circumstance may arise where the charges were brought prior to the release of the decision in Jordan, July 8, 2016. The transitional exceptional circumstance will apply where the Crown satisfies the court that the time the case has taken is justified based on the reasonable reliance of the parties on the law as it previously existed. In addition the Crown “must also show that it took reasonable available steps to avoid and address the problem before the delay exceeds the ceiling, such as developing and following a concrete plan to minimize delay occasioned by a particularly complex prosecution. (See Jordan para. 70 and 79)
[14] First, let me set out in chart form the progression of the matter through both the Ontario Court of Justice and the Superior Court of Justice together with an assessment of time allocations based on the Morin criteria of reasons for delay: intake/inherent delay, Crown and defence delay, waiver and limits on institutional resources.
Ontario Court of Justice
- March 26, 2014 to September 19, 2014
- Six accused arrested March 26, 2014, all accused were initially represented by Joseph Sereda for the bail hearings.
May 28, 2014
- All accused represented, Villanti by Allan Gold; Chaudhary by A. Weisberg; J. Sereda – Shane Smith, David Prentice and Andrew Lloyd.
June 25, 2014
- Initial voluminous disclosure provided by the Crown to defence counsel.
August 8, 2014
- Adjourned to allow counsel to review disclosure and set JPT – case managed by RSJ T. Lipson
September 19, 2014
JPT set for January 7, 2015
Court was available December 1, 2014, but counsel were not available – J. Sereda could not confirm dates because of serious illness.
Time Allocation for period: March 26 to September 19, 2014 – 6 months intake/inherent delay
- September 19, 2014 to July 24, 2015
November 12, 2014
JPT confirmed for January 7, 2015. Counsel for Chaudhary, A. Weisberg removed from record.
On December 16, 2014 an additional search warrant was executed on the offices of the accused and Crown expanded the time frame of the allegations.
January 7, 2015
Defence for Villanti, Chaudhary complained about usability and search ability of the disclosure hard drives which had first been raised in correspondence by Villanti’s counsel December 23, 2014.
Adjourned to February 18, 2015 for further JPT.
Non-retained counsel, M. Caroline sat in JPT for Chaudhary.
February 18, 2015
Crown provides reformatted copies of disclosure hard drives to counsel.
Adjourned to April 22, 2015 for JPT.
In interim on March 16, 2015 Crown makes available to defence disclosure of seized documents from search warrant executed December 2014.
April 22, 2015
New information with expanded time frame before the Court.
Adjourned to permit defence to review new disclosure and to continue JPT June 23, 2015.
June 23, 2015
JPT continued and preliminary hearing dates preserved for the spring 2016.
Villanti counsel was not available until November 2016 and the matter was put over to July 24, 2015 to be spoken to re. earlier dates.
July 24, 2015
Preliminary hearing dates set for May 30, 2016 to May 31, June 1 to June 3, June 6 to June 24, 2016, a total of 20 days set aside for preliminary hearing.
Dates as early as February 10, 2016 were offered but counsel for Villanti not available.
Further JPT set for January 8, 2016 for a focus hearing with case management RSJ Lipson
Time Allocation for period: September 19, 2014 to July 23, 2015
September 19 to December 23, 2014 - 3 months inherent delay.
December 23, 2014 to February 18, 2015 - 2 months Crown delay - reformatting of disclosure.
February 18, 2015 to June 23, 2015 - 4 months inherent delay.
June 23, 2015 to July 24, 2015 - 1 month Defence delay.
- July 23, 2015 to May 30, 2016
January 8, 2016
Focus hearing, adjourned to February 10, 2016 to continue
February 10, 2016 focus hearing continued. Crown simplified information by laying a new information with two counts, fraud and conspiracy.
Adjourned to commence preliminary inquiry May 30, 2016.
April 22, 2016
Adjournment application by counsel for Prentice, Smith and Lloyd as Sereda is seriously ill requiring at least three months for recovery.
Crown raised a possibility of a temporarily severing the Sereda accused to allow the preliminary to go ahead with others and to rejoin them by direct indictment after the preliminary in the Superior Court.
May 10, 2016
Crown on the record indicates it intends to temporarily sever Sereda accused and obtain a direct indictment after the preliminary of the others to rejoin them in the Superior Court
Procedure not consented to by Sereda accused. They all expressed their preference to keep counsel of choice, even though significant delay would occur.
Crown offered discovery of witnesses by Sereda accused to alleviate prejudice – declined.
(On September 26, 2016 agent for Sereda noted he would be ill until at least May, 2017.)
Time Allocation for period: July 23, 2015 to May 30, 2016
July 23, 2015 to February 10, 2016 - set preliminary hearing dates - all accused available on earliest date court, February 10, 2016, but Villanti counsel - 6.75 months institutional delay.
February 10, 2016 to May 30, 2016, first availability of counsel for Villanti May 30, 2016 and counsel for Prentice, Smith and Lloyd unavailable due to illness - 3.5 months defence delay
- May 30, 2016 to October 27, 2016
May 30, 2016
Chaudhary provides formal waiver of committal and matter put over on consent to the last day of the scheduled preliminary hearing, “we’ll consent to put the matter over to the last day of the preliminary inquiry to be spoken to.” (May 30, 2016 to October 27, 2016) There were discussions as to an induced statement and possible resolution. On July 25, 2017 Chaudhary stated: “Before that there was an induced statement. Caroline asked me to go for…saying look, you tell them everything you know and they’re withdrawing… That has been going on since 2015 itself. The standing down- so that was what was going on at this time, right up until November (2016).” A statement was provided November 14, 2016. Resolution did not occur.
Agent for Sereda asked that the matter go to early August in order to provide an update on Sereda’s medical situation.
Crown to prefer indictment at end of preliminary hearing re: Sereda accused (Prentice, Smith and Lloyd) severed.
Preliminary inquiry for Villanti proceeds: June 7, 17, 21, 22, 23, 24 and July 25 and 28, 2016
Counsel for Villanti unavailable until early September to continue preliminary, and then unavailable from September 19 to October.
(Note: July 8, 2016 SCC releases R v. Jordan 2016 SCC 27.)
July 28, 2016
- Last evidence of preliminary inquiry heard and adjourned to September 12, 2016 for submissions.
September 12, 2016
- Villanti did not appear, remanded to September 16, 2016 for oral submissions Crown only
October 3, 2016
- Defence submissions, adjourned to October 27, 2016 for decision
October 27, 2016
Committals ordered for Villanti and Losciano, sixth accused who later pleaded guilty.
Counsel for Villanti only retained to conduct the preliminary inquiry
Time Allocation for period: May 30 to October 27, 2016
May 30 to June 24, 2016 last day of scheduled preliminary - .75 months institutional delay
June 24 to July 25, 2016 first availability of counsel to continue - 1 month defence delay
July 28 to September 12, 2016 next availability of counsel – 1.5 month defence delay
September 12 to October 3, availability of counsel - .75 month defence delay
October 3 to October 27, 2016 re: committal decision - .75 months institutional delay
Summary
[15] The overall time in the Ontario Court of Justice is 31 months. In my assessment the allocation of time based on the Morin criteria are as follows:
Intake/inherent delay - 13 months
Crown delay - 2 months
Defence delay - 7.75 months
Institutional delay 8.25 months
Time in the Superior Court of Justice
[16] Overall time: October 27, 2016 to September 25, 2017 – 11.5 months. Original trial time estimate 5-6 weeks, (1.25 to 1.5 months), revised trial estimate with 4 unrepresented accused and 1 represented, 10-12 weeks, (2.5 to 3 months).
October 27 to November 17, 2016
- Remand intake from committal to Superior Court of Justice .75 months inherent delay
November 17 to December 20, 2016
- Crown obtained preferred indictment re Smith, Prentice and Lloyd - 1 month Crown delay
December 20, 2016 to January 12, 2017
- First JPT scheduled - 1 month inherent delay
January 12, 2017 to February 1, 2017
- New counsel for Villanti, Trudell raises Sereda’s conflict of interest having acted for Villanti in interviews with the RCMP pre-arrest. Matter adjourned to review Sereda conflict issue as between all counsel - .5 month defence delay
January 26, 2017
- Sereda recognizes conflict, but not prepared to withdraw as counsel that date. Court states that the matter is to be resolve by the next date. Trial dates in September 2017 will be preserved. Adjourned to February 1, 2017. - .5 month defence delay
February 1, 2017
- Sereda withdraws as counsel due to conflict of interest. Adjourned to permit Smith, Prentice and Lloyd to obtain new counsel. Sereda accused waive s. 11 b) rights.
March 1, 2017
All accused but Chaudhary self-represented. A target date of September 25, 2017 set for trial with the Crown estimate of 5 weeks plus 1 week pre-trial motions. Villanti’s Counsel removed from the record. - 1 month waiver by Smith, Prentice and Lloyd and/or defence delay. Court observed that with respect to Sereda’s conflict of interest issue: “practically speaking something that obvious the lawyer should have recognized on your behalf at the time of the circumstances”
In-court JPTs conducted
Note: Caroline appeared on behalf of Chaudhary and indicated he was ready to proceed in May, 2017, but agreed to trial September 25. On July 17, 2017 Caroline asked to be removed from record claiming client understood he was not retained to conduct trial. On July 25, Counsel’s claim was disputed by Chaudhary on the record, but due to declared “loss of trust” in counsel he agreed to have counsel removed as counsel of record.
As of July 25, 2017 only Prentice of the five accused has counsel and has indicated prepared to proceed to trial September 25.
Unrepresented accused, Smith maintains he is prepared to proceed to trial. The other accused seek an adjournment.
Time Allocation for period: March 1, 2017 to September 25, 2017 – institutional delay 6.75 months.
Summary
[17] The time allocations in the Superior Court of Justice are as follows:
Intake/inherent delay 1.75 months
Crown delay 1 month
Defence delay and waiver 2 months
Institutional delay 6.75 months
[18] Total time in the Superior Court of Justice is 11.5 months to trial. The anticipated time to completion when the trial date was set was five weeks, plus one week pre-trial motions (1.5 months).
[19] The overall total time in the Ontario Court of Justice, 31 months and the Superior Court of Justice, 11.5 months to trial and 1.5 months, to the original anticipated completion date or 2.5 months if accused unrepresented, is approximately 44 months.
Discussion
i) Defence Delay
[20] Under the Jordan framework delay is calculated by determining the total amount of time that has elapsed from the date of the charges to the actual or anticipated end of the trial and then by subtracting the defence delay.
[21] There are two types of defence delay, the first is delay waived by the defence which must be clear and unequivocal. The second is delay caused solely or directly by defence conduct which are those situations where the accused acts either directly caused the delay or the acts of the accused are shown to have been a deliberate and calculated tactic employed to delay the trial. There is no evidence of the latter. Any time periods categorized as defence delay in the chart above is that of the former. In Jordan the court noted that the defence will have directly caused the delay if the court and the Crown are ready to proceed but the defence is not.
[22] Here the overall delay is approximately 44 months and at the highest defence delay at the outside accounts for approximately 9.25 months.
[23] In a review of the materials, I find some period of delay attributable to each accused, however it varies as between them, which is due largely to the circumstances of their respective counsel or lack of counsel at particular times during the process.
[24] As the matter progressed through the judicial pre-trial and preliminary hearing appearances in the Ontario Court of Justice delay was contributed to by the lack of counsel’s availability – with respect to Mr. Villanti’s counsel availability to commence the preliminary inquiry. Counsel’s first availability following receipt of disclosure and judicial pre-trials was May 2016. Then, even though multiple dates were set to the end of June 2016, counsel was unavailable for some of those dates and future dates were required, thereby extending its duration to complete the matter to committal in October 2016.
[25] Counsel for Prentice, Smith and Lloyd became ill, thereby potentially delaying the preliminary inquiry. Had they waited for the availability of Mr. Sereda the earliest dates one would have been well into 2017.
[26] In response to the unavailability of Mr. Sereda and to prevent further delay the Crown severed the three accused and preferred an indictment with respect them on the understanding, as declared by the Crown, they would be joined subsequent to the completion of Mr. Villanti’s preliminary inquiry.
[27] As it was Sereda was not well enough to participate in the process until after the preliminary inquiry involving Villanti was completed and the indictment was before the Superior Court. Even then, counsel’s obvious conflict of interest, due to his representation of Villanti at the investigative stage, and removal March, 2017 occasioned further delay.
[28] The least amount of defence delay is attributable to Revendra Chaudhary. However, after the trial date was set by his counsel and later removed he too was not in a position to proceed to trial.
[29] None of the defence delay, even if viewed cumulatively, resulted in net delay that in any way quantitatively reduces the delay below the presumptive ceiling of 30 months fixed by the Supreme Court in Jordan.
[30] Where the total delay, less defence delay, still exceeds the applicable 30 month time limit, the delay is presumptively unreasonable. In that situation, the burden shifts to the Crown who may only rebut the presumption by showing the delay is reasonable because of the presence of exceptional circumstances. (See Jordan at para. 68).
ii) Exceptional Circumstances
[31] Exceptional circumstances are those that lie outside the Crown’s control in a sense that they are reasonably unforeseen or reasonably unavoidable and the Crown cannot reasonably remedy the delay arising from those circumstances. In general, exceptional circumstances fall into two categories: discreet events and particularly complex cases.
[32] Here, the Crown relies on the circumstances of this case as one of particular complexity. In Jordan at para 77, the Court explains:
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 includes voluminous disclosure, a large number of witnesses, significant requirements of 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 legal issues in dispute. Proceeding jointly against multiple accused, so long as it is in the interests of justice to do so, may also impact the complexity of the case.
[33] The court further notes that where the Crown has initiated a particularly complex prosecution, the court should consider whether the Crown has “developed and followed a concrete plan to minimize delay occasioned by such complexity”. (See Jordan para. 79)
[34] Here, a number of applicants contend that the matter involving charges of fraud over $5,000 of multiple investors in an alleged tax scheme and conspiracy is not a complex prosecution. However, other applicants contend that it is a significantly complex matter, but that the Crown has not mitigated or minimized its complexity by failing to follow a concrete plan.
[35] On March 26, 2014 as indicated earlier, all six accused were charged with fraud over and participating in a criminal organization, later changed to conspiracy. It is alleged that even after the accused were charged they continued to operate the fraudulent scheme, leading to further search warrants executed in December 2014, and an expansion of the time frame for the fraud and conspiracy allegations, and additional disclosure.
[36] In this matter, disclosure involved the production of thousands of documents seized at various businesses and banks. In submission I was advised by counsel for Andrew Lloyd on the application, that the parties have been provided hard drives of disclosure with a total data capacity of 3.5 terabytes, a substantial volume of data. The Crown in its response materials notes that there are 150 banker boxes of documents relevant to its prosecution. There are also forensic accountant reviews, reports and presentations with respect to the alleged fraud. Counsel involved early in these proceedings requested adjournments for more time to properly review and prepare for proceedings at various stages because the matter was complex and the amount of disclosure voluminous.
[37] The preliminary inquiry in this matter required twenty days to complete, which in effect involved the participation of counsel for just one of the parties, Vincent Villanti.
[38] In terms of the complexity of the case, the presiding preliminary inquiry justice referred to the evidence and the case as follows:
Apart from testimonial evidence, the prosecution case, and largely so, is composed of many volumes of documentary materials, including varied accounting, bookkeeping and bank records, and products of various forensic analysis. Viewed globally, the evidence paints a complex circumstantial case against the defendant.
[39] Later in his reasons for committal he referred to there being “a rich evidentiary record in this matter based on the voluminous nature of the materials”.
[40] In my assessment, considering the comments of preliminary inquiry justice that the matter is a complex circumstantial case that required twenty days to complete at the preliminary inquiry stage with only one of five accused participating, voluminous disclosure, a trial anticipated to take length of five to six weeks, later revised to require ten to twelve weeks when all but one accused no longer had counsel to represent them at trial set to start September 25, 2017 qualifies this case as particularly complex one.
[41] I accept, as well, that the Crown effectuated a plan and took steps to mitigate delay. It was perhaps not a perfect plan, but it was a reasonable plan during which adjustments were made.
The accused were charged jointly, appropriate for the original criminal organization charges, which was later altered and simplified to conspiracy.
The voluminous digital disclosure was reformatted for easier accessibility.
After the accused were originally charged, when the police conducted further investigations as a result of suspected continuation of the alleged fraud, the time frame of the allegations was expanded, rather than re-arresting the accused, laying new charges and thereby instituting a separate process.
The Crown severed three accused whose counsel fell ill in order to avoid the delay of the preliminary inquiry, later preferring an indictment to rejoin all accused in the Superior Court in order to move the matter forward, prevent a multiplicity of proceedings and to minimize its complexity.
[42] If this matter was to proceed to trial on September 25, 2017, while the net delay with the reduction due to defence delay is presumptively unreasonable, I am satisfied there are exceptional circumstances, the particularly complex nature of the case and the steps taken to mitigate delay, which justifies the delay.
iii) Transitional Case
[43] In Jordan, para 96 it was noted that for cases in which the delay exceeds the presumptive 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.
[44] In R. v. Williamson, 2016 SCC 28, [2016] 1 SCR 741 at paras. 26-30 the Supreme Court deemed the following factors relevant in determining whether the transitional exceptional circumstance applies:
The complexity of the case;
The Crown’s response, if any to any institutional delay;
The defence efforts, if any, to move the case along;
The period of delay in excessive of the Morin guidelines; and
Prejudice to the accused.
[45] As discussed above, this is a case of significant complexity. It is not one of moderate complexity as referenced by the Supreme Court in Jordan at para 97:
Moreover, 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 systematic 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.
[46] Firstly, this is a jurisdiction which has had significant institutional delay problems at both levels of court where the Crown’s behaviour and the scheduling of matters have been constrained by systematic delays. No more so can it be seen in the instance of this case as it progressed through the preliminary hearing phase in the Ontario Court of Justice with multiple accused and a circumstantial case based in voluminous disclosure.
[47] Secondly, in my view, there may been no missteps by the Crown or any evidence of a culture of complacency pre or post- Jordan on the part of the Court or the Crown in moving the matter to a trial date. The case at both the Ontario Court and Superior Court of Justice was case- managed by senior judicial officers who conducted judicial pre-trials to narrow issues, coordinate schedules in over-burdened courts and to move the matter to hearing or trial.
[48] Notwithstanding the overall length of time this matter has been before the court, even if one were to consider the traditional Morin factors, the combined Crown delay and institutional delay of 10 months in the Ontario Court of Justice and 7.75 months in the Superior Court of Justice totaling 17.75 months is within the Morin range of acceptable delay.
[49] I accept that there has been some prejudice to all accused, all experiencing significant financial and family stress a result of being charged, however, there is no evidence that the passage of time has diminished the evidence or the availability of defences in this serious matter to the prejudice of the accused.
[50] In Morin at p. 13 Sopinka J. noted that as a seriousness of the offence increases so does societal interest demand that the accused be brought to trial. Society has an interest in ensuring that serious matters such as these are dealt with not only expeditiously, but on their merits in a fair trial process.
[51] In my view, the prejudice claimed by the applicants is outweighed in the balance by the considerable prejudice to the interests of society that would be caused if the matter involving an alleged multi-million dollar fraudulent investment scheme involving many investors was not to proceed to trial.
[52] Considering the pre-Jordan, Morin factors the applicants’ right to be tried within a reasonable time pursuant to s. 11(b) has not been infringed.
[53] Although the delay exceeds the 30 month presumptive ceiling in Jordan, it is justified considering the particularly complex nature of the case and Crown efforts to mitigate delay. Further, I am satisfied that the “transitional exceptional circumstance” applies as this case was proceeding in reasonable reliance on the law by the parties as it previously existed.
[54] For the foregoing reasons the s. 11(b) application is dismissed.
Appendix A
Adjournment Application Ruling
Monday, September 18, 2017
A.J. O’Marra J. (Orally):
[1] The accused in this matter are set to commence trial September 25, 2017. Three of the accused are presently unrepresented for trial. Revendra Chaudhry, Andrew Lloyd and Vincent Villanti seek an adjournment in order to have counsel to act for them at trial. The other two accused, David Prentice with counsel, who is prepared to commence trial, and Shane Smith, unrepresented both wished to proceed to trial September 25, 2017.
[2] On a s. 11(b) application for unreasonable delay brought earlier by all five accused, I concluded that to this point in time, up to the anticipated completion of the trial set to commence September 25, 2017 that their s. 11(b) right to trial within a reasonable time has not been breached, largely due to the particularly complex nature of the case that involves the allegations of fraud over $5,000 and conspiracy to commit an indictable offence that are alleged to involve a multi-million dollar fraudulent investment scheme.
[3] The Crown is opposed to the adjournment of any of the applicants, wanting all accused to proceed to trial September 25, 2017 represented or not. In the alternative, the Crown’s position is that if any of the applications are granted, then all accused should be adjourned to the future date. They oppose severance of any of the accused.
[4] As noted, the basis for each applicant’s adjournment request is to have the benefit of counsel in order to assist them in their trial on this particularly complex matter which entails voluminous disclosure and issues well beyond the ability of any lay person without legal training or knowledge.
[5] In Regina v. Mallard and Schmitch, 2017 ONSC 4548 Justice Code set out a very helpful list of legal principles and relevant considerations derived from various adjournment applications at para 9:
Where the effect of denying an adjournment is to deprive the accused of counsel. This significant consequence is an important consideration. In this regard, representation by counsel is generally essential to trial. Fairness, wherein the accused is facing the long, complex, and serious proceedings, as is the present case.
Where the accused make a bona fide and reasonable request for an adjournment for the first time, and where the accused is making reasonable efforts to retain counsel, and where there is a serious case, an adjournment should be generally granted.
Where the accused has had ample opportunity to obtain counsel to represent him at trial and where his efforts were directed to causing further delay in the trial, an adjournment can properly be refused. The same is true where an accused has deliberately failed to retain counsel, or has discharged counsel with the intent of delaying the process.
The length of the requested adjournment and its impact on the fair trial rights of other parties is a relevant consideration.
When assessing the bona fide of their request to adjourn in order to retain counsel and prepare for trial, there are a number of relevant considerations including the accused’s personality and skills, his degree of familiarity with the criminal justice system in the context of any unfavourable rulings in a pre-trial.
In a case where a joint trial was required, one co-accused’s need for a further adjournment in order to retain counsel of choice cannot be exercised to dictate the day of trial so as to inconvenience other parties and prevent issues being dealt with fairly and efficiently.
[6] Let me deal with each adjournment application in turn. Mr. Revendra Chaudhary up until July 25 of this year, had been represented by Mr. Michael Caroline. On March 1, 2017 when the trial date was set, Mr. Caroline unequivocally advised the court that he was available for trial to represent Mr. Chaudhary and accepted the date of September 25, 2017 as the trial date, the earlier of the two trial dates offered by the court, September 2017 and January 2018. Then on July 17, 2017 an agent or associate of Mr. Caroline’s office indicated that he wanted to be removed as counsel of record. It was the first time that Mr. Chaudhary had heard of counsel’s desire.
[7] Justice McMahon wanted a proper motion record and application before the court prior to any removal of counsel could be considered in the circumstances of the trial date having been set by counsel. On July 25, 2017 the associate appeared with an application which had not been served on Mr. Chaudhary in advance. It had only been given to him that morning just before it was addressed in court. It was also reported to the court by the associate that Mr. Chaudhary had consented to have Mr. Caroline removed earlier, and then at the last moment refused. Mr. Chaudhary disputed that assertion. Notwithstanding, he accepted the removal of Mr. Caroline as counsel of record as asserted in his application before this court at para 19:
I was upset that Mr. Caroline would say that I consented to his being removed when I had not consented and that he would seek to be removed from the record so close to trial with little notice to me.
[8] Mr. Chaudhary affirmed in his affidavit he had lost trust in Mr. Caroline for the claims made by him, contrary to what had transpired between them according to Mr. Chaudhary.
[9] Having lost counsel and representation within days, Mr. Chaudhary attended upon the firm of Henein and Hutchison and formally retained them for the purpose of initiating an application for an adjournment of this matter as well as to bring a s. 11(b) delay application. They were not retained however, for trial, given their outstanding professional obligations, which would have prevented them from being prepared and being available to conduct a trial, September 25, 2017. However, counsel has advised in his submissions that he is available to act on the trial should the matter be adjourned.
[10] With respect to Andrew Lloyd, up until Mr. Joseph Sereda removed himself from the record, he had acted on a pro bono basis for Mr. Lloyd. The recognition of the conflict of interest that Mr. Sereda had and his removal occurred in February of this year. From that time thereafter, Mr. Lloyd sought Legal Aid assistance and was denied. He appealed and was again denied.
[11] The validity of the denial of the Legal Aid application is not a matter for my consideration, however, it does indicate that he had sought representation through Legal Aid, and when that matter was denied, he in turn sought further representation through Mr. White’s office in order to apply and make a Rowbotham application. I am satisfied that he has been diligent in seeking counsel. If the adjournment is granted and the Rowbotham application is successful, then Mr. Lloyd will be represented by counsel for trial.
[12] As with Mr. Chaudhary, there are, of course, matters involved in the pending trial that would be well beyond the capacities of an unrepresented accused facing these charges.
[13] Mr. Villanti has recently retained counsel although earlier in these proceedings he had retained counsel for the preliminary inquiry assisting him throughout. Then, in the Superior Court of Justice, he had Mr. William Trudell for a period of time however he removed himself as counsel of record March 1, 2017. Recently, Mr. Villanti has retained Mr. Riley who has stated before this court that he is prepared to act for Mr. Villanti on a trial if an adjournment is granted.
[14] All have applied for the first time, and all, in my view have been a bona fide request for an adjournment in order to ensure that they have counsel to represent their interests at trial. There is no appearance in the proceedings, certainly as reviewed on the s. 11(b) application, where the accused had intentionally delayed proceedings.
[15] Given the nature of the case, as found on the s. 11(b) application, the accused require counsel in order to have a fair trial. To force them on to trial unrepresented would jeopardize those rights. In the result, their applications for adjournment are granted. In seeking an adjournment of their trials, these three accused have waived their s. 11(b) rights to the new trial dates completion.
[16] Messrs. Prentice and Smith’s position is that if an adjournment is granted for those seeking it, they would seek a severance of their matters from the others in order to proceed to trial September 25, 2017.
[17] The Crown is opposed to severance of any accused and takes the position that all accused should be tried jointly.
[18] I intend to reserve this evening on the issue of severance and provide a decision tomorrow morning. For those accused who have had their trials adjourned, they will be remanded from today’s date to September 25, 2017 when there will be a future date assigned for trial.
Appendix B
Severance Application
Tuesday, September 19, 2017
A.J. O’Marra J. (Orally):
[19] Revendra Chaudhary, Andrew Lloyd and Vincent Villanti have been granted adjournments of their trials that had been set to start September 25, 2017. David Prentice, represented by counsel and Shane Smith, unrepresented, are prepared to continue to trial on the September 25, 2017 date and seek to be severed from a joint trial with the other accused.
[20] The Crown, in its submissions, asserts that it is, and always has been, vehemently opposed to severance for substantive and procedural reasons. It is their position that a joint trial, despite any delay it may cause the applicants, is in the interests of justice.
[21] Severance is dealt with, in this instance, in s. 591(3)(b) where it stated:
“The court may, where satisfied that the interests of justice so require, order where there are more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.”
[22] The court may, then, where it is satisfied the interests of justice so require, order a defendant or defendants to be tried separately from any other defendant or defendants. The onus is on the applicant to show on a balance of probabilities, that the interests of justice requires severance of the accused or the counts, as the case may be.
[23] In Regina v. Last, 2009 SCC 5, [2009] 1 SCR 146 at para 16-17, the court stated that the interests of justice criteria is quite broad and encompasses the right of an accused, “…to be tried on evidence admissible against him, as well as society’s interest in seeking that justice is done in a reasonably and efficient and cost effective manner”. The court in its exercise of discretion must ensure “…that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial.”
[24] In Last at para 18, it is noted that the courts have identified a non-exhaustive list of factors to be considered and weighed in assessing how the interests of justice may be served in a particular case and an injustice to the accused avoided. The factors include: general prejudice to the accused, legal and factual nexus between counts, complexity of the evidence, whether the accused intends to testify on a count but not on another, possibility of inconsistent verdicts, the desire to avoid multiplicity of proceedings, the use of similar fact evidence at trial, the length of the trial, having regard to the evidence to be called, the potential prejudice to the accused with respect to the right to be tried within a reasonable time, and the existence of antagonistic defences as between co-accused persons.
[25] In the exercise of a trial judge’s discretion, Sopinka J. observed in Regina v. Crawford and Creighton, 1995 CanLII 138 (SCC), [1995] 1 SCR 858 at para 31:
“Although the trial judge has the discretion to order separate trials, that discretion must be exercised on the basis of principles in law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused.”
[26] It is also to be remembered that where an accused is alleged to have acted in concert with another, there is a strong presumption in favour of joint trials.
[27] In Regina v. Chow, 2005 SCC 24, [2005] 195 CCC (3d) 246 at para 48, in reference to the Court of Appeal decision in Torbiak and Gillis (1978) O.J. No. 58, the Court stated: “it is a well- established rule that where the essence of the case is that the accused were acting in concert, they should be jointly indicted and tried, and an appellate court will not interfere with the discretion of the trial judge unless he has failed to exercise it judicially, or his decision has caused a miscarriage of justice.”
[28] The two accused seeking severance assert that the delay in the proceedings would cause further prejudice to their interests as set out in their affidavits submitted in support of the s. 11(b) application previously dismissed.
[29] Mr. David Prentice has indicated that he has not been able to work in his field since having been charged, and that he and his family have suffered financial and psychological distress on an ongoing basis. With respect to Mr. Shane Smith, he has indicated that, similarly he has a significantly reduced income and that he and his family have lost their home initially by foreclosure. The home that they are residing in now is under power of sale and that he too and his family have suffered financial, physical and mental distress.
[30] All of these adversities of course arise out of the circumstances of having been charged with fraud and conspiracy to commit an indictable offence.
[31] Both submit that if severance is not granted they will not waive their s. 11(b) right. Delay is one of the concerns amongst a number of factors in determining whether the severance is in the interests of justice and which must be balanced against the other factors. Certainly, post-Jordan the issue of severance has taken on a greater significance. However, a severance is not automatic even if it causes significant delay. In this instance, the Crown’s position that a joint trial, given the nature of the offences alleged, being fraud, but more particularly conspiracy to commit an indictable offence that a joint trial is reasonable and justified. It is argued that splitting the present case would simply add to the greater complexity of the evidence, making each trial longer and more complex and would unnecessarily create a multiplicity of hearings. It would create a significant duplication of hearings.
[32] It is estimated that the applicants’ trial with an unrepresented accused would require approximately 12 weeks to complete whereas when it was originally set with all accused and counsel involved, the time period was that of approximately 5 to 6 weeks. An unrepresented accused would be unable to participate in focusing the issues which would be necessary to facilitate an efficient trial process.
[33] The Crown alleges that all accused acted in various roles in two companies, ICBA and Synergy, and that they equally contributed to the fraud and conspiracy in doing so. If there were two trials, the Crown would be required to call all of the same witnesses twice in order to prove the fraud.
[34] The Crown submits that if there were separate trials, it would not be able to make use of the co-conspirators exception to the hearsay rule to admit statements of one accused in the furtherance of the conspiracy without first conducting a threshold admissibility hearing for each and every statement sought to be admitted for any severed compellable accused as a witness, as occurred in Regina v. M.T. (2009), O.J. No. 97, rather than arguing the necessity criteria and the appropriateness of the jury instruction as to the limited use that could be made of the evidence.
[35] As a joint trial, the necessity criteria would be met from the combined effect of the non-compellability of non-accused declarants, the undesirability of trying alleged co-conspirators separately and the evidentiary value of contemporaneous declarations made in furtherance of the alleged conspiracy.
[36] The Crown argues that severance would not only impair the efficiency of the trial process, but would impair the truth seeking function. The accused Shane Smith and David Prentice wish to be tried separately and Andrew Lloyd whose trial is to be adjourned operated under the same company, Synergy. The Crown alleges that the three accused conspired with Revendra Chaudhary and Vincent Villanti who operated ICBA. Severing the Synergy and ICBA accused, considering the nature of the conspiracy alleged, would prejudice the Crown’s case to prove conspiracy of all the accused and distract from the truth seeking function of the trial. It may also lead, the Crown submits, to inconsistent verdicts.
[37] In Regina v. Ny (2016), 2016 ONSC 8031, O.J. No. 6618 at para 42, Fairburn J. (as she then was) noted that there is the presumption in favour of joint trials. She quotes the following:
The jurisdiction is replete with sound policy reasons for conducting joint trials. It is a well-recognized principle of law that the interests of justice are more often best served by having people who are allegedly to have committed crimes together, tried together, and their guilt or innocence determined together. As Laskin J.A. held in Regina v. Whylie (2016), 2006 CanLII 811 (ON SC), 205 CCC (3d) 97 at para 24: “A single trial for two or more accused generally conserve judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once.
[38] A joint trial of all accused represented will be much more efficiently conducted, thereby reducing trial time rather than conducting two trials, particularly in the context of a complex proceeding, as this case will be.
[39] In considering the potential prejudice to the applicants, their right to be tried within a reasonable time, the complexity of the matter as determined on the s. 11(b) application, the vastly extended length of the trial set for September 25, 2017 from 5 to 12 weeks as a result of unrepresented accused, the desire to avoid multiple proceedings, the nature of the charges, the undesirability of trying alleged co-conspirators separately, in my assessment severance would not be in the interests of justice in this instance.
[40] In the result, the application for severance is denied. On September 25, 2017 all accused will be remanded to a future date to set a new trial date in this matter.
A.J. O’Marra J.
Released: December 15, 2017
CITATION: R. v. Villanti, 2017 ONSC 7130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VINCENT VILLANTI, REVENDRA CHAUDHARY, SHANE SMITH, DAVID PRENTICE and ANDREW LLOYD
Applicants
SECTION 11(B) unreasonable delay, adjournment and severance applications
A.J. O’Marra J.
Released: December 15, 2017