CITATION: R. v. Eid, 2017 ONSC 892

COURT FILE NO.: 12-20041

DATE: 2017-02-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROLAND EID

Defendant

M. Welch, for the Crown.

R. Adelman, for the Defendant

HEARD AT OTTAWA: February 1, 2017

RAY J.

Overview

[1] The defendant brings this application to stay the May 2, 2016 convictions of the defendant for fraud and related offences on the ground of delay pursuant to s. 11 (b) of the Canadian Charter of Rights and Freedoms.[^1] The sentencing hearing had been scheduled to be heard when the defendant launched his 11(b) application. It was agreed that it would be heard at the same time as had been scheduled for the sentencing hearing. He waives the period after December 2, 2016.

[2] I found the defendant guilty of ten counts of fraud and fraud related offences on May 2, 2016 after a trial that included 22 witnesses and almost 100 exhibits containing many thousands of pages during 36 days over 11 months. (R. v. Eid, 2016 ONSC 3221). The many exhibits included agreed statements of fact, volumes of financial and banking records, financial statements, emails, and other documentation. The defendant did not call evidence. He was charged June 20, 2012. The time frame from the date of charge to the date of my decision, January 20, 2012 to May 2, 2016 is approximately 46 months. It was adjourned to February 2, 2017 for sentencing after delays for a presentence report, and a s. 21 mental health assessment. The delay from the date of decision to the date of sentencing is approximately 9 months.

[3] The defendant’s position is that the progress of this case including the delays for sentencing, offend the Jordan guidelines concerning delay. Specifically, he takes the position that the delay amounts to 53-54 months since he includes the post decision period up to December 2, 2016 when he formally waived the period from December 2, 2016 to February 1, 2017, the date of the sentencing hearing.

[4] The trial and decision phase were completed May 2, 2016 before Jordan was decided; and at a time when the law governing delay was governed by the Morin guidelines. The defendant had not launched an application based on delay under the previous guidelines. This application falls to be decided under the “transitional exceptional circumstances” in Jordan if the total time after deduction for defence delay is greater than 30 months.

[5] These ‘transitional exceptional provisions’ have been addressed by the Court of Appeal in two contemporaneous decisions: R. v. Coulter, 2016 ONCA 704 @ para. 34; and R. v. Manisseri, 2016 ONCA 703 that provide further guidance.

[6] Firstly, I take Jordan to say that the 30 month ceiling ends at the end of the trial. It is pretty clear that means the date of decision. The Court explicitly took no position on the delay period for sentencing. It did, however, confirm that the delay period for sentencing is to be included in the s. 11(b) analysis.[^2] This, I propose to do. But I intend to deal with it separately since different factors come into play.

Jordan Framework[^3]

[7] The new framework requires that we take the delay period up to the date of decision (after trial) and then deduct delay attributable to the defence. If the result is greater than the 30 month ceiling, then it is presumptively unreasonable. The onus then falls to the Crown to establish exceptional circumstances to rebut the presumption. If it cannot, then a stay will follow. Exceptional circumstances, generally, fall under two categories: discrete events and particularly complex cases. Remaining delay is the period of time after deduction of the discrete events delay. If the remaining delay does not exceed the 30 month ceiling, in the absence of evidence from the defendant of undue prejudice, then the delay is not presumptively unreasonable, and s 11(b) of the Charter is not offended. If the remaining delay exceeds the 30 month ceiling, the Court must consider whether the case was particularly complex such that the time the case took is justified and the delay is reasonable.

[8] In this case, the defence delay consists of express waiver, and defence caused delay.[^4]

[9] The express waiver periods include:

1. September 12, 2012 to September 26, 2012- 2 weeks; and
2. September 9, 2014 to April 7, 2015 - 7 months.

[10] The defendant’s position is that “none of the periods was explicitly waived.” I find there was an explicit waiver for each period. The evidence is clear. The defendant challenges this latter period on the ground that he was occupied with Legal Aid in negotiating for approval for a forensic accountant. I do not accept the defendant’s position. The waiver was clear, on the record, and involved his client. The parties to a proceeding and the court, rely on submissions of counsel when arranging the progress of proceedings. This is such an example. I see no basis on which, for the purpose of delay calculations, the defendant should be permitted to resile from his express representation to the Court. The total delay is therefore 7.5 months.

[11] There is also defence caused delay. This is the period when the Court and the Crown are ready to proceed but the defendant is not.[^5] The Crown’s position is:

1. August 13, 2012 to August 27, 2012 – a period of two weeks;
2. March 1, 2014 to September 9, 2014 – a period of approximately six months;
3. October 1, 2016 to December 18, 2016 – a period of two months and 18 days.
4. For a total of slightly in excess of 7 months.

[12] The Crown’s position is that on all of these dates, the Crown and the Court were ready to proceed, but the defence was not. The defendant’s position is that it is only intentional defence delay that is a “deliberate tactic calculated to delay the trial” that should be counted. The court in Jordan did not limit defence delay in that fashion.[^6]

[13] For the first period, the transcript is clear that an earlier date had been offered for a JPT; the Crown was available but the defence was not.

[14] The second period of time is challenged by the defendant. The transcript of June 7, 2013 is clear that the defendant did not want to agree to set trial dates because he had not completed a Rowbotham Application for funding, and took the position that he could not waive s. 11(b) because he had not been retained for the trial. The Crown was anxious to set trial dates, the defendant was not. Whether it is the defendant or his counsel that is not prepared to set a trial date because of retainer issues, the consequent delay is delay caused. I do not accept that the defendant’s difficulty in dealing with funding is a Crown responsibility for the purpose of assessing delay. The defendant referred to R. v. Boateng [^7] in submissions for authority that I should go behind the Rowbotham Application and consider the delays by LAO. There may be circumstances where a delay in state funding may cause unnecessary delay. This is not one of them. Counsel from Legal Aid Ontario appeared, to explain their procedures and the correspondence that was exchanged with the defendant’s counsel at the time. The defendant was seeking public funds to finance his defence. The public would expect careful scrutiny by those charged with the responsibility of assessing and administering those kinds of applications. I am satisfied that the process was promptly responded to by LAO. There was no evidence of delay. The irony, however, is inescapable that in his dealings with LAO, he constantly emphasized this was a complicated and sophisticated case requiring forensic accounting assistance, yet before me on this delay application has maintained the opposite.[^8] In this case, trial dates could have been set, but butting up against a trial that defence counsel had already set. He was resisting the date, even though he acknowledged he had not been retained; and if the Rowbotham application had not been successful, then it would have made no difference. Defence counsel’s position was that it was premature to set trial dates until he knew about the retainer. The Crown was clearly concerned at the prospect of delay, and the defendant was not prepared to waive s. 11(b) to accommodate the delay in setting a trial date. He did accept September 9 to October 4, 2014 for trial. I do not accept the defendant’s argument that the delay period should not be characterized as defence caused delay. Although, I do accept that the delay period should start 6 weeks after the March 1, 2014 date and end October 9, 2014, the anticipated end of the trial. The elapsed time is the same, though.

[15] The third period arose after an ill Crown witness was available for the resumption of the trial October 1, but the defence was not available until December 19, 2016 for the resumption of evidence.

[16] I accept that the total delay attributable to the defendant was 16.5 months, leaving a net delay of 29.5 months.[^9]

Exceptional Circumstances – Discrete Event Illness.[^10]

[17] From this net delay must be deducted the period of delay caused by the exceptional circumstances of the illness of a key Crown witness, Mr. Kemball.[^11] The importance of this key witness, on behalf of one of the major witnesses to the fraud, Acorn Partners, cannot be understated. He was the second most important Crown witness and testified for 2 full days. Evidence was provided concerning his serious health condition. He lived in Toronto and would have had to travel to Ottawa to give evidence. The issue of having him give evidence by video was canvassed, however, at that time, his medical condition prevented him from even giving evidence. The concern was the stress of testifying on his cardiovascular health. I am satisfied that Mr. Kemball was a key Crown witness, and that his evidence would not have been available before September 30, 2015. The delay was approximately 4 months: May 28, 2015 to October 1, 2015.

[18] The remaining delay then is 25.5 months, below the presumptive ceiling.

Exceptional Circumstances - Particularly Complex[^12]

[19] If, however, I have made an error in assessing the delay in this case; and it is found to be in excess of 30 months, any delay over the 30 months ceiling is justified by the complexity of this case. I find that that this was a very complex case. The documentary evidence was voluminous and complex. A large number of fact and opinion witnesses were called to review events from several years earlier during the time of the offences. The voluminous documents were analysed and assessed during the course of the evidence. Most of the documents were financial and banking records of different degrees of detail and clarity. Some of the records were incomplete. Some were missing; other documents had to be relied upon to ferret out the contents of the missing documents.

[20] I heard evidence on this application of the importance of the defendant requiring access to a forensic accountant to assist with his understanding the evidence.

[21] The Crown filed the affidavit of an RCMP investigator assigned to Sensitive and International Investigations (SII) within the National Division of the RCMP. In his detailed affidavit, he describes the several steps taken in the investigation, the reasons for any delays, and a timeline of the progress of the case (Exhibit 4). The enormous number of documents found on computers and in hard copy after the defendant absconded to Lebanon took many months by experts to analyse and assess. It was an evolutionary process in that the analysis of the enormous volume of material gave rise to numerous leads to other financial records and document sources through the use of search warrants. These additional documents had to be assessed and analysed. Finally, the documents were summarized, distilled and prepared in a form for use at trial. The disclosure was massive. I completely understand why defence counsel felt the need for forensic accounting assistance.

[22] After the close of the case, it was necessary to adjourn for 2 months for submissions. Written submissions were requested because of the length and complexity of the evidence. It was then adjourned a further 2 months for a decision. The written decision was quite lengthy, again reflecting the complexity of the evidence and the legal issues.

[23] This case was described by counsel as the biggest commercial fraud case in Ottawa’s history. The complication and sophistication of the fraud makes it a highly unusual case.

[24] I have no doubt that if it is found that this case took in excess of 30 months that its length was in no small measure caused by its complexity.

Sentencing Delay

[25] The sentencing phase began after I delivered my decision May 2, 2016. It was adjourned to May 6, 2016 to set a date for the sentencing hearing. The defendant’s counsel said he was thinking about getting a report concerning the defendant’s mental health and was unsure what kind of assessment he wanted. He was giving it consideration and wanted a 2 or 3 week adjournment. Defence counsel was away and unavailable May 24, 2016. It was adjourned to June 6, and then because I was unavailable, was adjourned to June 27, 2016.

[26] On June 27, 2016, defence counsel requested a PSR, and asked for a s. 21 Mental Health Assessment. He argued that he felt the defendant’s mental condition at the time of the offences was relevant to fashion a sentence. The Court made it clear that a PSR would be necessary and the usual 8 week delay would follow. The Court asked counsel for more authority concerning the scope, and purpose of the report. The Court also expressed concern about delay arising from having such an assessment completed. It was adjourned to July 11, 2016 for counsel to report back.

[27] On July 11, 2016, the defendant’s counsel reported that the assessment would take 60 days or more, at the Royal Ottawa Hospital by a forensic psychiatrist. The Court made the order for the Mental Health Assessment. On the return date of September, 2, 2016, the PSR had been completed and filed. However, the ROH report was not ready. It was adjourned again, and finally the report arrived, dated November 23, 2016. On November 30, 2016, counsel appeared and fixed February 1, 2016 for an 11(b) application, and February 3, 2017 for sentencing. The sentencing decision was given on February 7, 2017 along with the 11(b) decision.

[28] The delay in sentencing was prompted by the defence request for a mental health assessment. These kinds of assessment take time. It was not an unreasonable request. The delay was typical of the delays that occur. A Gladue report might have taken longer in a different case, depending on the resources available.

[29] Unless a sentence is imposed from the bench following a finding of guilt, most times it falls to the defence to marshal evidence on behalf of the offender for consideration by the court. Sometimes, the court will require further information, as in the Gladue situations. These delays are for the ultimate benefit of society and the offender in fashioning a fit and proper sentence.

[30] The following factors from MacDougall should be considered in the event of an application for a stay based on delay whilst waiting for sentencing:[^13]

1. Sentencing should take place as soon as practicable following a finding of guilt.
2. Delay in sentencing may prejudice an accused’s s. 11(b) interests which include a liberty interest, a security interest, and a fair trial interest.
3. A s. 11(b) analysis of sentencing delay is only required where the delay is sufficiently great to raise the issue of whether the accused’s rights may have been prejudiced. Otherwise no analysis is necessary.
4. Preparation time and assembly of evidence for the hearing is inherent time that is expected to occur at the sentencing phase; and in the absence of prejudice does not, in and of itself, fall under the time guidelines.
5. The assessment of prejudice to the offender during the sentencing phase depends on the circumstances on a “case by case basis.”
6. No delays intentionally caused by, consented to, or requested by the defendant can be used in support of a claim that a s. 11(b) violation has occurred.
7. The right to be tried within a reasonable time under s. 11(b) includes the right to be sentenced in a reasonable time. However, the specific rights available to an individual vary with each stage of the proceeding.

[31] Applying the above factors from R. v. MacDougall, the time from the finding of guilt, May 2, 2016 to February 7, 2017 is subject to consideration under s. 11(b) as the right to be tried within a reasonable time.

[32] I find that there was no prejudice to the defendant arising from the delay at the sentencing phase, and I need not conduct an analysis. He did not actually assert actual prejudice, only that the time should be included under the Jordan ceiling. As noted, I do not accept that argument.

[33] In this case, while the defendant expressly waived the two month delay before sentencing, no portion of the delay, including the waived portion, was unnecessary or adversely affected the defendant’s liberty, security, and fair trial interests. To the contrary, virtually all of the time was requested by the defendant to obtain evidence for submissions and therefore cannot be considered in the s. 11(b) analysis in any event.

Conclusion

[34] I am satisfied the delay from the date of arrest to the date of decision following the trial is below the presumptive ceiling; and if I am wrong, the exceptional circumstances of the illness of a key Crown witness, combined with the particular complexity of the case, easily explains any additional period of delay. The defendant has established no basis for prejudice because of the delay for sentencing.

[35] The defendant’s application to stay the proceeding and the convictions for delay as being contrary to s. 11(b) C.C.C. is dismissed.

Honourable Justice Timothy Ray

Released: February 7, 2017

CITATION: R. v. Eid, 2017 ONSC 892

COURT FILE NO.: 12-20041

DATE: 2017-02-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

ROLAND EID

Defendant

REASONS FOR DECISION (11(b))

RAY, J.

Released: February 7, 2017

[^1]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [“the Charter”] [^2]: R. v. Jordan, see paragraph 49, and footnote 2 comment. Note the reference to R. v. MacDougall [^3]: R. v. Coulter, (2016) 2016 ONCA 704, 340 CCC (3d) 429 paras. 34 -41; R. v. Jordan, note 1, paras. 47, 48, 66,71, 75, 80, 96 [^4]: R. v. Jordan, Note 1, para. 186 [^5]: R. v. Jordan, Note 1, para. 64 [^6]: R. v. Coulter, Note 2, paras. 42-44; R v Jordan, note 1, para. 64, 66. [^7]: R. v. Boateng, 2015 ONCA 857 [^8]: See also the appearance before Metivier J., June 7, 2013, p.5, line 1, counsel described the case as a “fairly sophisticated, significant, complex file” [^9]: R. v. Jordan, Note 1, para. 48. [^10]: R. v. Coulter, Note 2, para. 49 [^11]: R. v. Jordan, Note 1, paras. 72-75. [^12]: R. v. Coulter, Note 2, paras. 51-52. [^13]: R. v. Jordan, Note 1; R. v. MacDougall, [1998] 13 S.C.R. 45 paras. 16, 33-48 (SCC)