COURT FILE NO.: CR-17-00000029-0000 DATE: 20180712
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and - vincent villanti, ravendra chaudhary, shane smith, david prentice and andrew lloyd Applicants
Michael Lockner and Helen Song, for the Respondent Crown Paul Riley, for the Applicant Vincent Villanti Ravendra Chaudhary, Appearing in Person Shane Smith, Appearing in Person Thomas Mathews, for the Applicant David Prentice Stephen White, for the Applicant Andrew Lloyd
HEARD: June 22, 2018
Croll J.
ruling on 11(B) application
Introduction
[1] The Applicants Vincent Villanti, Ravendra Chaudhary, Shane Smith, David Prentice and Andrew Lloyd are charged with fraud over a value of $5,000 and conspiracy to commit an indictable offence. They were arrested on or about March 26, 2014, and the period of the offences runs from January 31, 2009 up to and including December 31, 2014.
[2] The Applicants have brought an application pursuant to sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11, to stay the charges against them because of unreasonable delay. While it was initially unclear from his written material whether Mr. Chaudhary was also participating in this application, in oral submissions at the start of the hearing he confirmed that he too is seeking this relief.
Background
[3] This case involves a $13 million fraud. The nature of the case is summarized in paras. 3-5 of R. v. Villanti, 2017 ONSC 7130 [“Villanti”], a decision of Justice A. O’Marra, in which he dismissed the first s. 11(b) application brought by the Applicants in mid-September 2017. He stated as follows:
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.
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.
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.
[4] The trial in this case was originally scheduled to begin on September 25, 2017 [the “First Trial”]. It was set for 12 weeks. As stated, the s. 11(b) application brought prior to the September 25, 2017 trial date was dismissed. At that time, the time between the arrest of the Applicants and the anticipated completion of the trial was approximately 44 months, which exceeded the presumptive ceiling of 30 months set out in R. v. Jordan, 2016 SCC 27 [“Jordan”]. However, O’Marra J. found that both the complexity of the case and the transitional exceptional circumstances, as explained in Jordan, justified the time the case had taken to that point.
[5] Following the dismissal of the s. 11(b) application, O’Marra J. granted adjournment applications brought by the Applicants Villanti, Chaudhary and Lloyd. All three sought to adjourn the September trial in order to retain counsel.
[6] Following this, O’Marra J. then dismissed the severance application brought by the Applicants Smith and Prentice, who sought to have their trial go ahead separately from the others. On the facts of this case, O'Marra J. held that severance was not in the interests of justice, despite the delays it would obviously occasion to Messrs. Smith and Prentice.
[7] A new trial date was then set for February 26, 2018 [the “Second Trial”] which was the first date agreeable to all parties.
Period between First Trial date of September 25, 2017 and January 25, 2018
[8] On January 25, 2018 counsel for Mr. Prentice advised the Court that he would be bringing a third party records application seeking production of material from the Canada Revenue Agency. Also within this time period, Mr. Smith apparently indicated to the Crown that he would be calling a large number of witnesses, such that the 12 weeks scheduled for trial would not be sufficient.
[9] The Applicants Prentice and Smith also brought a second s. 11(b) application to be heard at the start of the February 26, 2018 trial, arguing that when the additional 5 months between the First and Second trial dates were added to the delay, their right to be tried within a reasonable time was violated.
January 25, 2018 to date
[10] On January 25, 2018 Justice McMahon, the head of the criminal long trial team at the Ontario Superior Court of Justice in Toronto, indicated for the first time there was no judge available to try this case. The matter was adjourned to the week before the scheduled start of the Second Trial to see if a judge could be made available.
[11] On February 21, 2018 McMahon J. confirmed that there was, in fact, a judge available, and the name could be provided to counsel within a day or so, noting then that counsel may wish to consider the possibility of re-election. In response to the information that Mr. Smith would be calling a large number of witnesses such that the trial time of 12 weeks might not be sufficient, McMahon J. indicated that the trial would be done in a timely manner and expressed assurance that the trial judge would effectively manage the trial time.
[12] However, on February 26, 2018 McMahon J. advised the parties that he had lost two judges from the criminal team for medical reasons and that there were no other judges available to try this case.
[13] The first trial date that McMahon J. could offer for a 12-week jury trial was in January 2019. The trial was rescheduled to January 11, 2019.
[14] As a result, the Applicants bring this current s. 11(b) application.
The s. 11(b) Application
[15] The Jordan framework for assessing whether delays in criminal matters are reasonable was summarized in R. v. Coulter, 2016 ONCA 704, at paras. 34-41:
34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
35 Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
38 Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
41 The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).
[Emphasis original]
[16] In this case, the total time between the arrest of the Applicants on or around March 26, 2014 and the anticipated completion of a 12-week trial around April 5, 2019 is 60.5 months, more than double the presumptive Jordan ceiling.
[17] Where there are multiple accused, the s. 11(b) calculation should be an individualized exercise (see: R. v. Ny and Phan, 2016 ONSC 8031; R. v. Manasseri, 2016 ONCA 703).
[18] As stated, at the time of the first s. 11(b) application in September 2017, the time period from arrest to the anticipated end of trial was approximately 44 months. In his Jordan analysis, O’Marra J. found that as of September 25, 2017, defence delay at its highest amounted to approximately 9.25 months. While he found that there was some period of delay attributable to each Applicant, it varied among them largely due to the circumstances of their respective counsel or lack of counsel at different times in the process. It appears that O'Marra J. found that the greatest amount of defence delay was attributable to Mr. Villanti, given his counsel’s unavailability to start the preliminary inquiry, and the least amount of defence delay was attributable to Mr. Chaudhary. In considering the defence delay, O'Marra J. stated, at para. 29 of Villanti: “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.”
[19] After September 25, 2017 the delay attributable to each Applicant varies. Messrs. Villanti, Lloyd and Chaudhary requested the adjournment. The 154 days (approximately 5 months) between the First Trial Date of September 25, 2017 and February 26, 2018, the Second Trial Date, is considered defence delay for those three Applicants. As a result, the defence delay at its highest, for the Applicants Villanti, Lloyd and Chaudhary, is 14.5 months (9.5 + 5).
[20] There is no further defence delay on account of the Applicants Smith and Prentice. Their defence delay, at its highest, is 9.5 months.
[21] Accordingly, for the Applicants Villanti, Lloyd and Chaudhary, the net delay is 46 months, or just short of 4 years (60.5 - 14.5).
[22] The net delay for the Applicants Smith and Prentice is 51 months, or approximately 4 years, 3 months (60.5 - 9.5).
[23] The Crown submits that the further 11-month delay between the second and third trial dates should be deducted from the net delay because the 11 months stems from exceptional circumstances, as considered in Jordan. This would amount to remaining delay for the Applicants Villanti, Lloyd and Chaudhary of 35 months, and remaining delay for the Applicants Smith and Prentice of 40 months.
[24] Even after deducting the 11-month adjournment period, as submitted by the Crown, the remaining delay for all Applicants continues to be presumptively unreasonable.
Analysis
[25] Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases (see: Jordan, at para. 81).
[26] A medical emergency affecting an accused, counsel, or the judge is an example of a discrete event that could amount to an exceptional circumstance (see: Jordan, at para. 81).
[27] Particularly complex cases are those that require an inordinate amount of trial or preparation time, given the nature of the issues and/or the nature of the evidence. Voluminous disclosure and charges that cover a long period of time are factors that could contribute to complexity (see: Jordan, at para. 77). Co-accused delay has also been analyzed under the complexity exceptional circumstance, provided it is in the interests of justice to proceed jointly (see: Jordan, at para. 77; R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 142, 169-174).
[28] In his analysis on the first s. 11(b) application, O'Marra J. found this was a complex case. He stated, at para. 40 of Villanti:
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.
[29] As well, O'Marra J. was satisfied that, up to the September 2017 trial date, reasonable efforts to prioritize the case had been undertaken (see the requirement set out in Jordan, para. 79). He stated as follows at para. 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.
[30] The Crown submits that these reasonable efforts continued once it was known that there would be further delay after February 2018. The Crown looked into whether this case could take priority over other scheduled cases, and whether this case could be heard in the time slotted for cases that had resolved. The Crown also points to efforts made by the Court. In this regard, McMahon J. carefully reviewed the list of long trials scheduled for the 361 University Avenue courthouse to determine priority, and contacted two other judicial regions in the GTA to inquire whether there was any excess judicial capacity that could be “loaned” to Toronto for a 12-week trial.
[31] None of these efforts were successful to allow the trial to commence on its scheduled date, or to reduce the time out to the next trial date.
[32] The Crown rejects any suggestion that withdrawing, severing or changing its case would result in any significant time savings. Its position throughout this case has been that it is a large-scale conspiracy, and all of the evidence that would be required to prove it would need to be called against each of the Applicants. In this regard, the Crown points to R. v. Nguyen, 2013 ONCA 169, at para. 61:
…..But these decisions about how to proceed, against whom, upon what charges, and on what evidence, for that matter, whether or when to do so or to withdraw charges, are contingent upon interdependent circumstances and factors far removed from the knowledge of presiding judges. Courts should be hesitant to scrutinize the Crown's decisions absent clear reason to do so: Khan, at para. 30.
Exceptional Circumstances
[33] I accept that the illness of two judges is a discrete event that could amount to an exceptional circumstance as outlined in Jordan. As McMahon J. informed counsel in January and February 2018, one judge would be unavailable for an extended period; the other for some 4 to 6 weeks.
[34] I also agree with the characterization of the case as complex, leading O'Marra J. to find that the 44-month delay he had to consider was not unreasonable. I do not, however, accept that the potential increase in documents flowing from Mr. Prentice’s third party records application, which would be heard and determined in advance of the trial, or the large number of defence witnesses proposed by Mr. Smith, are additional complexities justifying the remaining delay. In my view, the 12 weeks scheduled for trial is sufficiently long for the trial judge to manage issues that may arise from the third party records or the number of potential defence witnesses. In other words, I am not convinced that there are any additional complexities beyond those found by O’Marra J. in the original s. 11(b) application. All parties were ready to proceed to trial as of the Second Trial date in February 2018. None of the new issues raised by the Crown in this application amount to a novel or fresh complexity that justify the delay.
[35] Rather, the relevant complexity arises from the challenges in scheduling a trial of this length, and is inextricably linked to the discrete event of two judicial illnesses.
[36] However, the amount of time - 11 months - that the Crown seeks to deduct from net delay due to exceptional circumstances is not acceptable in this post-Jordan world. Had this trial been adjourned for some 4 to 6 weeks or for some other modest period until a judge was available, I accept that the period should be deducted from net delay as a discrete event. That would be a reasonable approach, in accordance with the Jordan framework.
[37] That being said, a trial judge’s illness, as a discrete event, is distinct from the delay caused by scarce judicial resources. In explaining, and indeed, apologizing, to counsel for the unavailability of a judge to hear this case from February 2018 to January 2019, McMahon J. stated the following:
On January 25, 2018: Okay, so the one thing I will give people the heads up on in relation to it is with the number of judges they’ve given me for the criminal matters scheduled. Right now, that was why I was hoping that other case might turn into a resolution. Quite practically speaking with the number of homicides, attempt murders and gun cases I have going, right now I do not have a trial judge to do this case. This will be the first case right now. That may very well change between now and then, but I thought in fairness to counsel, this is the first time I’ve had to say this post Jordan, but in relation to this indictment right now, unless they somehow give another judge or a new appointment or one of the long trials resolves in the next few weeks, that’s where we’re at ……
….So, I’ll do the best we can…..And if we could just free up four or five murder cases to help out we would, but I can’t……
On February 26, 2018: ….. So I’ve lost two criminal judges in a couple of days and right now because of those medical challenges they’re facing I had to pull a judge off this case to deal with a person who is in custody on a six- week trial and I don’t have anybody to replace that judge. So it is frustrating because everybody should get to trial in a timely fashion .….
On March 1, 2018: It’s just the frustration of this Court with not having sufficient resources to do the job, despite everybody’s best effort.
So despite my efforts of getting an additional resource from another region, quite frankly, unless, as we talked about yesterday – I just added up, we have 44 homicides scheduled this year in Toronto to be tried. And we’ve been resolving some of them and what we’ve been doing it, but I can only do what I can do and Mr. Lockner, I’m out of, I’m out of options. The first time I have trial time for this is January of 2019 and the reason for the delay would be the unavailability of this court to be able to provide a judge to do the case. So it’s not something we’ve had to do before in a long trial, but that’s where we are. We’re hoping to get additional judges to complement. We’ve asked the Federal government for that. We don’t have those. It is frustrating, but we can only do with what we got. So ….
…. And I understand all the accused are ready, able and go to trial as is the Crown, and the fault lies with myself and the Court for not providing a judge.
[38] There is a heavy and challenging caseload of criminal and other cases at the Superior Court in Toronto. Given the existing complement of judges, there is very little, if any, flexibility to respond to sudden absences. Pursuant to the Jordan framework, an exceptional circumstance is one that must be reasonably unforeseen or unavoidable. It is, of course, the case that the illness of any particular judge is not reasonably foreseeable. However, it is reasonably foreseeable that, from time to time, judges will be unavailable. In a system that is already experiencing enormous pressure, it is no surprise that such unavailability will trigger serious and challenging scheduling issues, especially when 12 weeks of trial time is required. These scheduling issues include making difficult decisions about the priority in which cases proceed. The delay was also avoidable had there been the proper judicial complement.
[39] The adjournment of the second trial date from February 2018 to January 2019 added an 11-month delay to a case that already exceeded the Jordan ceiling. To reiterate, for the Applicants Villanti, Lloyd and Chaudhary, the net delay they have experienced is almost 4 years. For the Applicants Smith and Prentice, the net delay is approximately 4 years, 4 months. Even if the 11-month delay is abridged by 2 to 3 months to account for the exceptional circumstance of judges’ illness, the net delay for all Applicants still significantly exceeds the Jordan presumptive timeline of 30 months or 2 ½ years.
[40] Jordan established a new approach to bringing matters to trial in a timely manner. It did so, the Court explained at para. 19, because:
…[T]he right to be tried within a reasonable time is central to the administration of Canada's system of criminal justice. It finds expression in the familiar maxim: ‘Justice delayed is justice denied.’ An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.
[41] To meet the Jordan timeline, it is axiomatic that courts must be properly resourced with the appropriate complement of judges. In this case, despite serious and creative efforts made to find a solution, resource issues prevented the Court from being able to meet its Jordan obligation. The delay was simply too long to be considered reasonable.
[42] On all of the facts, I find that the 11-month adjournment period is not an exceptional circumstance that can be deducted from the delay. The Crown has not rebutted the presumption that the delay is unreasonable on a Jordan analysis.
Transitional Exceptional Circumstances
[43] Jordan provides that transitional exceptional circumstances may justify delay above the ceiling, if the Crown shows that the delay is justified because of a reasonable reliance on the law as it existed at the time the delay was accumulating (see: Jordan, para. 126). The Crown quite properly submitted that the transitional exceptional circumstances have no application here, given that the delay that is the focus of this application occurred well after the release of Jordan in July 2016.
Conclusion
[44] For these reasons, the s. 11(b) application(s) are granted and the proceedings against the Applicants Vincent Villanti, Ravendra Chaudhary, Shane Smith, David Prentice and Andrew Lloyd are stayed.
Croll J.
Released: July 12, 2018