COURT FILE NO.: CR-16-3614-MO DATE: 2019-02-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

GERALD GOLDHAR, JER-MAR FOODS LTD. and COOLWATER FISH LTD. Appellants

Counsel: Paul A. Bailey and Bridget K. Bailey, for the Crown (Respondent) Gerald Goldhar, appearing in person, for the Appellants

HEARD: August 9, 2018

REASONS ON APPEAL

Overview

[1] This is an appeal pursuant to s. 813(a)(i) of the Criminal Code[^1] by the appellants, Gerald Goldhar, Jer-Mar Foods Ltd. (“Jer-Mar”), and Coolwater Fish Ltd. (“Coolwater”), against their conviction by R. Marion J. of the Ontario Court of Justice in Windsor, Ontario, on December 8, 2015, for various regulatory offences under the Fish Inspection Act,[^2] the Fish Inspection Regulations, 1983,[^3] and the Food and Drugs Act,[^4] and their sentence imposed by Marion J. on February 24, 2016.

[2] On April 10, 2012, the appellants were charged with committing various offences under the Fish Inspection Act, Fish Inspection Regulations, and the Food and Drugs Act, relating to the unlawful commercial importing of fish and fish products into Windsor, Ontario. The fish and fish products (seafood) were imported via the Windsor-Detroit tunnel by Mr. Goldhar and his companies, Jer-Mar and Coolwater. The offences were found to have occurred between September 20, 2010 and June 30, 2011.

[3] All fish products imported into Canada must meet the requirements of the Fish Inspection Act and Fish Inspection Regulations, as enforced by the Canadian Food Inspection Agency (“CFIA”). In addition, all food products sold in Canada must meet the requirements of the Food and Drugs Act and Food and Drugs Regulations.[^5] It is the primary purpose of the legislative scheme to ensure that only fish products that meet Canadian standards for safety and quality, and which are safe for human consumption, may be commercially imported into Canada.

[4] In furtherance of that primary purpose, the Fish Inspection Act and Fish Inspection Regulations require, inter alia, that:

a. a commercial importer of fish products have a valid Fish Import Licence issued by the CFIA;[^6]

b. the CFIA receive written notification of all commercial fish imports either prior to importation or within 48 hours following the importation;[^7] and

c. an importer of fish hold the imported fish products for inspection by the CFIA until either i. the imported fish products are granted release by the CFIA, or ii. the importer receives permission from the CFIA to move the imported fish products where an inspection is deemed not to be required.[^8]

[5] Put generally, the appellants were charged with failing to report, misreporting, underreporting, and unlawfully moving the contents of various shipments of fish and seafood imported between October 25, 2010 and June 30, 2011.

[6] The trial of the appellants commenced before Marion J. of the Ontario Court of Justice in Windsor on September 14, 2015. The appellants pled not guilty to all counts before the court. The Crown proceeded by summary conviction on all counts.

[7] Mr. Goldhar represented himself and, with leave, the two defendant corporations at trial.

[8] The trial judge heard from six witnesses over five days of trial, and submissions were received on the sixth and seventh days of trial.

[9] More specifically, at the conclusion of trial, as part of their written submissions to the court, the defendants brought an application alleging that their rights under ss. 7, 11(d), and 15 of the Canadian Rights of Charter and Freedoms[^9] had been infringed. No specific Charter allegations had been asserted by the defendants prior to the filing of their written submissions on September 24, 2015. Nevertheless, Marion J. allowed submissions and granted two lengthy adjournments (from September 15, 2015, to November 2, 2015, and then to December 18, 2015) to permit additional materials to be filed with respect to the Charter allegations.

[10] On December 18, 2015, Marion J. delivered oral reasons for judgment, comprising some 32 pages of transcript, and found Mr. Goldhar guilty of fourteen counts and not guilty of three counts, Jer-Mar guilty of three counts and not guilty of two counts, and Coolwater guilty of seven counts and not guilty of two counts.[^10] The trial judge also found that the defendants had been afforded a full opportunity to present a defence and had received a fair trial.

[11] On February 24, 2016, Marion J. sentenced Goldhar to fines totalling $9,800, Jer-Mar to fines totalling $6,000, and Coolwater to fines totalling $7,500. The appellants were each given six months to pay their respective fines.

[12] On March 14, 2016, the appellants filed, inter alia, a notice of appeal in respect of both the convictions and sentences.

[13] For the reasons that follow, I conclude that the appeals must be dismissed.

Factual Background

[14] The relevant factual background, including summaries of the evidence of the witnesses at trial, is set out in paras. 1-10 of the appellant’s factum[^11] and paras. 4-47 of the respondent Crown’s factum.[^12] There is no need to repeat all of that detail here. I will review below the evidence that was before the trial judge only to the extent necessary to determine the issues on appeal.

[15] The corporate appellants, Jer-Mar and Coolwater, are separate corporations. Jer-Mar was established in 1984. Mr. Goldhar is currently the sole shareholder of Jer-Mar. Jer-Mar held an import licence until 2010. Jer-Mar has not been an active corporation for over five years. It has not had any sales in over five years. It does not have any assets or net worth. It does not maintain bank accounts.[^13]

[16] Paragraph 5 of the appellants’ factum concedes that Mr. Goldhar was the principal of Jer-Mar, “the importer and person mainly responsible for” giving notification of imported products to the CFIA and the Canada Border Services Agency (“CBSA”).

[17] The corporate appellant Coolwater remains in operation and is being run by Mr. Goldhar. Mr. Goldhar has described Coolwater as a small retail outlet whose customer base includes various Windsor restaurants. Coolwater was established in 2006, and its sole shareholder is Mr. Goldhar’s wife, Darlene Goldhar. Coolwater received its import licence in 2010. As conceded in para. 6 of the appellants’ factum, Mr. Goldhar was the person who picked up fish products in Detroit on behalf of Coolwater.

Issues

[18] The appellants’ amended notice of appeal purports to set out 14 grounds of appeal.

[19] Mr. Goldhar did not address all of those 14 grounds in his oral argument at the hearing of the appeal. Rather, Mr. Goldhar addressed or touched on only the following five issues in oral argument before me (which he raised in the following order):

a. Did the trial judge misapprehend the evidence by failing to find that Coolwater did not hold a valid CFIA licence to import fish products as required by the Fish Inspection Act?

b. Did the trial judge misapprehend the evidence by failing to find that some of the imported fish products were for personal consumption?

c. Did the trial judge permit an abuse of process by failing to hear and determine the appellants’ Charter applications at the outset of trial?

d. Did the trial judge fail to provide the appellants with the minimum level of assistance that was necessary to ensure a fair trial?

e. Did the trial judge permit an unfair trial by failing to allow the appellants to claim a violation of their right to be tried within a reasonable time, contrary to s. 11(b) of the Charter?

[20] I will deal with each one of these grounds below, in the same order in which Mr. Goldhar addressed them with me.

[21] Mr. Goldhar advised that he was content to rely upon his written submissions in the appellants’ factum in respect of the balance of the grounds of appeal advanced.

Standard of Review

[22] The limited powers of a summary conviction appeal court are set out in s. 822(1) of the Code, which incorporates by reference the powers of the Court of Appeal as set out in s. 686 of the Code. As such, on an appeal against conviction, a summary conviction appeal court may allow the appeal only where:

a. the verdict is unreasonable or cannot be supported by the evidence;

b. the trial judge erred on a question of law; or

c. there was a miscarriage of justice on any ground.

[23] The limited jurisdiction of a summary conviction appeal judge was described by the Ontario Court of Appeal in R. v. Smits, where the Court held that:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[^14]

[24] Our Court of Appeal has said that the function of a summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt.[^15]

[25] To the same effect is the recent reiteration by our Court of Appeal in R. v. Polanco, released May 11, 2018, where Nordheimer J.A. said on behalf of the unanimous court that:

The jurisdiction of a summary conviction appeal judge is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[^16]

[26] It is trite law that the factual findings made by the judge at first instance should not be overturned unless the appellant demonstrates “palpable and overriding error.”[^17] As the Supreme Court of Canada said in Housen v. Nikolaisen, that is a “stringent standard,” requiring an appellate court to afford the trial judge a “high degree of deference.”

[27] Further, a question of mixed fact and law is also subject to the deferential “palpable and overriding error” standard, subject to the limited exception of whether an extricable error of pure law can be identified.[^18]

Analysis

[28] To better understand the relative merits of the grounds of appeal advanced, and to place them within the context of the regulatory scheme, it is of assistance to consider the general process for importing fish and fish products in Canada.

[29] I would summarize that process by saying that the general procedure for importing fish and fish products into Canada for commercial use is set out in the Fish Inspection Act and Fish Inspection Regulations, under which regulatory scheme an importer is required to:

a. order from the supplier and receive an invoice;

b. have a valid import licence from the CFIA;

c. complete and submit a “B3” when the shipment is entering Canada. A “B3” is a signed, commercial declaration submitted to the CBSA by an importer, such as Mr. Goldhar, of what is being imported, the import licence number, and often the supplier’s invoice;

d. submit a “FIN” to the CFIA. A “FIN” or Fish Importation Notice is a document that reports the type, quantity, and weight of items being imported. The FIN must be submitted to the CFIA either in advance of the shipment or within 48 hours of the shipment arriving. (Submission by fax is permissible and common).

e. upon receipt of a FIN by an importer, CFIA Inspectors will either inspect the shipment to ensure it meets quality and safety requirements under the Fish Inspection Act and, where applicable, standards under the Food and Drugs Act or inform the importer that no inspection is needed (in which event, quality and safety compliance is deemed);

f. after the inspection, or if a shipment is deemed to not need an inspection, the importer receives permission from CFIA to move the shipment;

g. shipments cannot be moved until permission is granted by the CFIA.

[30] As the trial judge found, to a large extent, “the protection of the public is dependent upon honest and timely disclosure by importers.”[^19]

[31] It is to be noted that fish and seafood imported for the importer’s personal use and consumption does not require a FIN to be submitted to the CFIA[^20] but does require a B3 to be submitted to the CBSA.

[32] In the instant case, although nothing really turns on it, it appears that the only reason the appellants’ shipments without FINs came to the attention of the CFIA was because there was an audit of B3 records held by the CBSA in May 2011 that revealed that there were shipments by one or more of the appellants that had been imported and reported to the CBSA but not the CFIA.

Did the trial judge misapprehend the evidence by failing to find that Coolwater did not hold a valid CFIA licence to import fish products as required by the Fish Inspection Act?

[33] The appellants submit that Coolwater never had a valid Fish Import Licence and that, accordingly, the charges set out in counts 7-18 are invalid because the information relied upon to lay the charges used an import licence number. The appellants posit that since Coolwater never had a valid import licence, the licence number specified could not have belonged to Coolwater. (It appears that the licence number relied upon was the licence given to Jer-Mar.)

[34] In argument before me, Mr. Goldhar submitted that a licence cannot be transferred or assigned to another business or person (which proposition is not contested). He submitted that the trial judge never ruled on this issue.[^21]

[35] It is not the case that the trial judge failed to rule on this issue. Indeed, the trial judge dealt with the licence discrepancy at some length, and his explanation formed the basis for the court’s acquittal on count one, as follows:

The evidence is that on October 25th, 2010, Jer-Mar declared a commercial importation of fish products at the Windsor tunnel entry point. Mr. Goldhar submitted a B3 identifying the transaction and a declaration was signed by Mr. Goldhar, (see exhibit one). Jer-Mar’s Fish importation licence expired on October 19th, 2010, (see exhibit two). Every importer is assigned to a licence number. Jer-Mar’s application was signed October 13th, 2010, and is indicated to have been received by the CFIA on October 19th, 2010 with an accompanying cheque of $500.00, (see exhibit 16).

On October 22nd, Mr. Goldhar said that by telephone he spoke with Inspector Morin regarding Jer-Mar’s licence, and was advised that it was good to go. He presumed it was in force.

It appears that Mr. Goldhar changed his business plans as, on October 25th, 2010, he filed an application for a fish import licence for Coolwater. An application was signed by his wife, Darlene Goldhar. It was received by the CFIA on October 28th, 2010. Coolwater’s licence was granted effective December 1st, 2010. Obviously, there is a gap between the two periods of time with Jer-Mar’s licence expiring on October 19th, 2010 and Coolwater’s licence being granted effective December 1st, 2010.

Jer-Mar and Coolwater are distinct corporations. Mr. Goldhar is the sole shareholder and officer and director of Jer-Mar, while his wife, Darlene Goldhar, is the sole shareholder, director, and officer of Coolwater. The application of Coolwater is indicated as a renewal and clerical staff at the agency assigned it the same licence number, 1210136, to correspond to the prior licence held by Jer-Mar. An employee of the CFIA added on the Coolwater application, in brackets, (as previously Jer-Mar), number 1210136.

Clearly, the ownership and directorship of Jer-Mar and Coolwater were distinct and the CFIA Inspection Act Regulations provide that a licence is not transferable. The agency, in my opinion, should not have treated the application of Coolwater as a renewal, nor should it have assigned to Coolwater the same licence number as Jer-Mar. In fact, that licence number should have been invalidated upon expiry of Jer-Mar’s licence on October 19th, 2010. The decision to apply for a licence on behalf of Coolwater may have caused some delay or confusion. Ministry officials, I presume, would seek to make the renewal applications a seamless process for commercial importers, provided there are no prior difficulties.

Prior to a licence being granted, a basic assessment is performed. On October 22nd, 2010, the basic licence assessment form was completed by CFIA inspector, Mike Morin, (see exhibit 13). On the form, the name of Jer-Mar is crossed out and Coolwater is substituted. The assessment was made by a telephone conversation with Mr. Goldhar, and it is indicated to have been acceptable to the inspector. The assessment was favourable, yet Coolwater was only granted a licence effective December 1st, 2010, and Jer-Mar’s licence was not renewed.

It is evident that Ministry officials may have been confused and incorrect in the manner the licence applications were processed, but they did not invalidate Jer-Mar’s licence number even though its licence had apparently expired. Allowing Mr. Goldhar to use licence number 1210136 could easily have induced him to believe, as he did, that it was business as usual. I am prepared to give the accused the benefit of the doubt with respect to this alleged offence. Although well-intentioned, Ministry officials played a significant role in this regard, and Jer-Mar and Mr. Goldhar will be found not guilty on count one.[^22]

[36] Insofar as concerns the liability of Coolwater on the subsequent counts, it is incorrect to say that Coolwater “never had a valid import licence” and therefore should not have been charged or convicted. Despite the confusion caused by assigning the same number as the licence previously held by Jer-Mar, it is clear from the evidence before the trial judge that, as he correctly found, Coolwater was granted a licence effective December 1, 2010.

[37] In any event, the submission of the appellants that because of the discrepancy surrounding the licence number, Coolwater could not have been properly convicted of any offence rests upon a misapprehension of the relevant legislation. The relevant provisions under ss. 6(1), 6(2), 6(2.2), and 23 of the Fish Inspection Regulations, ss. 9(1) and 17.1 of the Fish Inspection Act, and ss. 4(1), 24(1) and 31.1 of the Food and Drugs Act apply to persons. In short, a Fish Import Licence is not a required precondition to the charge. Whether or not Coolwater held a valid Fish Import Licence at the relevant times does not exempt it from compliance with the statutory scheme, nor immunize it from prosecution for breach thereof.

[38] In sum, this ground of appeal must be dismissed.

Did the trial judge misapprehend the evidence by failing to find that some of the imported fish products were for personal consumption?

[39] The appellants submit that the trial judge erred in failing to find that some of the impugned shipments were either for personal use or not for public consumption. The appellants rely upon the provisions of s. 3(2)(a) of the Fish Inspection Regulations, which provide that “these Regulations do not apply to … fish that is imported or exported for personal consumption or use.”

[40] Before the trial judge, the appellants bore the onus of establishing that they came within the exception under s. 3(2)(a).

[41] In dealing with the charges at hand, the trial judge was required to make findings of fact, and in the course of his analysis he made findings of credibility. A trial judge may accept some, all, or none of the evidence of a witness.

[42] In the course of addressing counts seven and eight, which dealt with the importation of a whole lobster which was processed frozen, that is, frozen after it had died, the trial judge made the following findings:

In order for a lobster to be fit for commercial importation in Canada, it must be frozen and processed while alive. Inspector Morin testified that Mr. Goldhar told him that the lobster had died in the tank at Northern Lakes Fish and Seafood, in Detroit, Michigan, and then it was sold to Coolwater.

The lobster was declared as a commercial importation by Mr. Goldhar, on behalf of Coolwater, on the 25th of March, 2011. The lobster was found in his possession on the 30th day of March, 2011, and the defendants [Mr. Goldhar and Coolwater] are charged on count number seven with unlawfully importing fish that fail to meet the requirements of the Fish Inspection Regulations.

On count number eight, they are charged with having in their possession and article of food for sale that was unfit for human consumption.

Mr. Goldhar argued that there is no evidence that the lobster was frozen after it had died. In addition, he testified that it was not going to be used for public consumption. It was recovered by the inspectors prior to being used or sold and was disposed of by Mr. Goldhar. Mr. Goldhar testified that the lobster was to be sold as stock to a local restaurant. I, first of all, accept the evidence of the inspectors that Mr. Goldhar revealed that the lobster had died in the tank prior to being frozen. Mr. Goldhar did not in his testimony contest that evidence.

I do not accept the evidence of Mr. Goldhar that the lobster was not for public consumption. The fact that it was intended to be used for stock for soup surely means for human consumption. Both Mr. Goldhar and Coolwater will be found guilty on counts seven and eight.[^23] [Emphasis added.]

[43] In a similar vein, when the trial judge was addressing counts 11, 12, and 13 against Mr. Goldhar and Coolwater, which dealt with an importation of fish on March 30, 2011, the trial judge made the following findings:

There is no issue that the Fish product was imported as claimed. There is no issue that there was no written notification provided to the CFIA. There was no release or permission for sale of the fish product imported. CBSA documentation revealed that there was an importation of fish declared by Coolwater on March 30th, 2011. A B3 Canada Customs form has been provided in the name of Coolwater, and an invoice for the shipment, as well as what was presented to the CBSA, (see exhibit five).

On April 8th, 2011, Inspector Morin stated he spoke via telephone to Mr. Goldhar and asked him about the fish importation on that date. Mr. Goldhar stated he had chosen instead to purchase fish locally in Windsor, and that he had not imported any fish from Detroit that day at all. During that conversation, Inspector Morin said that at no time did Mr. Goldhar suggest that he imported fish products for personal use.

Mr. Goldhar’s testimony at trial was that the fish was purchased for personal use. This is contradicted by the commercial import documentation filed with the CBSA, showing that he imported 60 pounds of frozen fish products in the name of Coolwater on March 30th, 2011. I do not accept his testimony that the product was imported for personal use. The declaration made was for a commercial importation for Coolwater. Considering the quantity of fish imported and the fact that he did not reveal that it was for personal use when he spoke to Inspector Morin, in my opinion, reinforces my conclusion of the guilt of the accused as charged on counts 11, 12, and 13.[^24] [Emphasis added.]

[44] As I have indicated above, a trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference by the reviewing appellate court. It is not the role of this appellate court to retry the case and reverse findings of fact that were not favourable to Mr. Goldhar or the appellants. To the extent that the appellants seek to have this court set aside these findings, the appellants have not shown any palpable or overriding error that infected the findings made by the trial judge. The findings of fact and credibility made by the trial judge were available to him based on the evidence before the court at trial. The appellants have shown no basis to interfere with those findings.

[45] This ground of appeal must be dismissed as well.

Did the trial judge permit an abuse of process by failing to hear and determine the appellants’ Charter applications at the outset of trial?

[46] In para. 14 of their factum, the appellants submit that:

The appellants claim that their constitutional right to reasonable legal representation was interfered with by the prosecutor. This was used as a tactic and therefore denied their right to a fair trial [sic]. The appellants tried to raise this issue at the start of the trial but were denied. After the conclusion of the trial, but before rendering a decision, this issue was raised with the prosecutor. … The prosecution always stated that they would be calling a minimum of 23 witnesses and required a three (3) week trial. The courts and [the] defendants were purposely misled. This is an abuse of process and misconduct.

[47] As articulated in both the appellants’ factum and by Mr. Goldhar in oral argument before me, there is some overlap of issues entailed in this submission. One strand involves the appellants’ argument that the Crown adopted a “tactic” to purposely mislead the defendants (and the court) as to the length of trial; the appellants argue this resulted in an unfair trial and abuse of process, in contravention of their rights under ss. 7 and 11(d) of the Charter, because, they say, had they known that the trial was going to require only five or six days, they might have retained legal counsel to represent them at trial.

[48] The other strand bound up in the appellants’ submission is that the trial judge ought to have permitted the appellants to advance their concerns based on abuse of process and alleged Charter violations at the outset of the trial.

[49] I shall address each in turn.

[50] Dealing firstly with the appellants’ claim that the Crown committed an abuse of process by misleading Mr. Goldhar about the length of time needed for the trial as being three weeks, and that this dissuaded Mr. Goldhar from obtaining legal counsel, I reject that claim.

[51] The evidence indicates that the original trial estimate of three to four days was put forward in June 2013, and was changed by May 2014 to two to three weeks. The number of witnesses to be called by the Crown changed from 20 in May 2014 on the trial readiness certificate, to five in September 2015 in the Crown’s opening submissions at trial.

[52] The trial judge was well aware of the applicant’s abuse of process argument. Indeed, that argument was put to the trial judge in Mr. Goldhar’s closing submissions; the trial judge required the appellants to put their concerns in a written application; he then ruled on it, and he rejected the argument.

[53] In particular, the trial judge was aware of the appellants’ argument that they were somehow misled by the Crown’s incorrect estimate of the length of trial.

[54] In response to the appellants’ application for a stay of proceedings based on abuse of process, the trial judge received and considered the affidavit of Mr. Edward J. Posliff sworn November 13, 2015. Mr. Posliff acted as Crown counsel at the trial. Put broadly, in that affidavit, Mr. Posliff explained the process by which the Crown re-evaluated its estimate of the length of time needed for trial. In his affidavit, Mr. Posliff stated, inter alia, the following:

I did not act on behalf of the government during the two applications for a government-funded lawyer [made by Mr. Goldhar]. David Moffat of the Public Prosecution Service in London represented the Crown with respect to those applications.

I am informed by David Moffat and do verily believe that the application for a government funded lawyer made by Mr. Goldhar was rejected on the primary ground that he failed to make full and complete disclosure of his financial circumstances, which is a prerequisite to obtaining state funded counsel. In addition, I am informed by David Moffat and do verily believe that the court found that no counsel is required to respond to the charges, because the charges are simple and that the number of Crown witnesses had more to do with not being able to ask for admissions from an unrepresented individual rather than any complexity of charges or issues raised at trial.

In the summer of 2015, in late July and early August, I began to prepare for trial. As I reviewed the file, I came to the conclusion that two groups of witnesses, among those identified in the Crown disclosure, were not necessary to prove the Crown’s prima facie case and would likely serve to unnecessarily complicate the trial.

I decided that these witnesses were not material to the proof of the Crown’s prima facie case and would needlessly complicate the trial if called as witnesses.

I made this reassessment in late July and early August of 2015 in good faith and not as the applicants alleged with the intention of ensuring that it made the applicants’ lives and ability to defend themselves as difficult as possible. My consideration in making my reassessment and acting on it by calling fewer witnesses was to best present the evidence in proof of a prima facie case.[^25]

[55] The trial judge addressed the appellants’ abuse of process argument at the outset of his reasons for judgment, as follows:

At the outset of the trial, Mr. Posliff, on behalf of the Crown, advised the Court that he would be calling merely four witnesses and that he anticipated the Crown’s case would take two-and-a-half days. This case was set for three weeks. The events, from which these charges arise, occurred in 2010 and 2011. The certificate of readiness, dated May 26, 2014, signed by the Crown and Mr. Goldhar, indicated that the matter would require three weeks. At that time, the Crown anticipated it would be calling 24 witnesses and the defence anticipated calling 10 witnesses.

At the opening of the trial, and opening statement was made by Mr. Posliff followed by a very brief comment by Mr. Goldhar, the latter, who inquired as to what would be done with any Charter breaches. At that time there wasn’t a Charter application brought by any of the defendants. I responded to Mr. Goldhar that they would have to be dealt with as they arose during the course of the trial. Mr. Goldhar was silent as to the nature of any Charter applications that would be made. He never mentioned that he wished an adjournment to retain a lawyer at that point. He proceeded with the trial, representing the corporations and himself. He never said that due to the abbreviated estimate for the duration of the trial that he could now afford a lawyer.

Once all of the evidence was heard and in closing submissions Mr. Goldhar stated that had he known that the trial was going to take effectively a week or less, he would have retained counsel. He was suggesting that a fair trial was not held given that he was without counsel. After deliberation on this issue, I invited Mr. Goldhar to make that application in writing.

Essentially, Mr. Goldhar is claiming an abuse of process. He asserts that he was unaware until the commencement of the trial that the Crown had shortened its witness list and had made more careful selection of the exhibits that would be filed.

The Crown called four witnesses at trial and Mr. Goldhar, himself, gave evidence on behalf of the defendants. Although this matter was stretched out over five days with submissions on a sixth day, some delay occurred as a result of my decision to provide Mr. Goldhar with the opportunity to organize himself for his examination in-chief, as well as to accommodate the availability of one Crown witness. Had that not been the case, the matter could likely have been fully concluded in four to five days.

The defence point out that by letter dated June 12th, 2013 from Mr. Posliff to Mr. Frank Miller, then counsel to Mr. Goldhar and the corporate defendants, the Crown listed a number of exhibits and admissions which would allow the trial estimate to be reduced to three to four days.

Mr. Goldhar points out that there have never been any admissions made by the defendants. The estimate of the time required for trial never varied until the opening of the trial, at which time the Court and Mr. Goldhar were first apprised of the fact that the trial would be of a much shorter duration.

Needless to say, it would have been preferable if Mr. Goldhar, as well as the Court, would have been advised at an earlier time of the shortened duration anticipated for this trial.

I note from the information that Mr. Miller was removed from the record prior to any admissions being made, which would allow for a reduction in the estimated court time.

In addition, the defendants were represented by Ms. Santarossa until she was removed as counsel on May 8th, 2014, at which time Mr. Goldhar assured the Court that he would be acting on behalf of the defendants.

Mr. Goldhar conducted himself quite appropriately during the trial. He was focused, gave evidence in an organized fashion, and made appropriate concessions. He was able to question the witnesses called by the Crown and elicit pertinent evidence.

I am content that there was no improper motive on the half of the prosecution in this matter. In my opinion there was no misconduct, which would constitute an abuse of process in this case. In fact, the Crown’s election to reduce the number of witnesses effectively rendered the trial less complicated.

The charges in this matter are simple. The number of Crown witnesses that had been estimated had more to do with the failure to obtain admissions from unrepresented parties then any complexity in the charges or issues to be raised at trial.

In my view, Mr. Goldhar has been afforded a full opportunity to present a defence and has received a fair trial. Therefore, there will be no order for a stay.[^26]

[56] Again, the findings of fact made by the trial judge as to the motive of the Crown and other matters are entitled to deference in this court. There was evidence to support the findings that were made. The appellants have failed to demonstrate any palpable and overriding error that would justify appellate intervention.

[57] More generally, I see no error in the manner in which the trial judge dealt with the appellants’ claim of abuse of process. The Supreme Court of Canada has held that an abuse of process warranting a stay of proceedings will be found in only the “clearest of cases,” where it can be said that “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive and vexatious proceedings.”[^27] For the reasons explained by the trial judge, there was no such conduct in the case at bar.

[58] Consequently, the trial judge properly held that no abuse of process occurred in the case at bar.

[59] Moreover, while the appellants suggested that they might have retained counsel had they been apprised of the shortened time estimate of the Crown’s case, it should be noted that there was evidence before the trial judge of efforts made by the Crown to shorten the length of trial. Specifically, in a letter dated June 12, 2013, to Mr. Frank Miller, counsel for the appellants at the time, the trial Crown sought admissions regarding documentary evidence. It was indicated that, if such admissions were made, the trial could be reduced to “three or four days.”[^28]

[60] Secondly, the evidence before the trial judge indicated that the appellants had not demonstrated an inability to retain counsel. At various times throughout the proceedings and prior to trial, the appellants were represented by different legal counsel. On two occasions, the appellants made Rowbotham applications for the appointment of state-funded counsel. Both applications were dismissed, in part, because the appellants failed to provide an evidentiary basis to support their assertion that they lacked the financial resources to retain counsel.

[61] In all of these circumstances, the trial judge correctly found that had been no violation of the appellants’ rights under ss. 7 or 11(d) of the Charter.

[62] The second strand of the appellants’ submission is that the trial judge erred by failing to hear and determine the appellant’s Charter applications at the outset of the trial, which, the appellants submit, resulted in an unfair trial and abuse of process.

[63] To be clear, as Mr. Goldhar expressly conceded in oral argument before me, it is common ground that before the trial judge rendered a decision on the trial, he gave Mr. Goldhar and the defendants the opportunity to raise Charter issues, and the defendants afforded themselves of that opportunity. The trial judge merely did not determine those issues when Mr. Goldhar wanted, i.e., at the outset of trial, and he required that the Charter applications be reduced to writing.

[64] In my view, there is no merit in the contention of the appellants that the trial judge did not have the authority to direct when and how applications to the court should be made. Those considerations fall squarely within the ambit of the trial management powers of a trial judge.

[65] In R. v. Felderhof, the Ontario Court of Appeal dealt with a challenge by the Crown after the trial judge at the Ontario Court of Justice deferred an evidentiary ruling. The Court of Appeal explicitly dealt with the extent to which a trial judge has the inherent authority to control its own process. Writing for a unanimous court, Rosenberg J.A. upheld the trial judge’s decision and held that:

Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly two. Now it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court’s power to intervene to prevent an abuse of its process. Rather, the power is founded on the court’s inherent jurisdiction to control its own process.

I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire, to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called. The latter power is one that must be exercised sparingly because the trial judge does not know counsel’s brief. However, a judge would not commit jurisdictional error in exercising that power unless the effect of the ruling was to unfairly or irreparably damage the prosecution. That did not occur here. While some other judge might not have made the order that the trial judge did in this case and might very well have seen the merit of immediately proceeding with the omnibus document motion, I am not convinced that the trial judge’s decision to do otherwise was a jurisdictional error. On my reading of the record, the ruling did not prevent the prosecutor from calling his case. I agree with the application judge’s view (at para. 227) that deferring the documents motion did not “unfairly or irreparably” damage the position of the prosecution.[^29]

[66] In a similar vein, in R. v. Romanowicz, the Court of Appeal spoke of the broad powers of a trial judge to control their own process and held, per curiam, that:

The authority of the criminal trial court to control its own process has been recognized both where the court exercises a discretionary power granted by the Criminal Code and where there is no statutory authority for the court’s action.[^30]

[67] In the legitimate exercise of his trial management powers, the trial judge here directed that the defendants’ Charter applications would be heard and determined at the conclusion of trial rather than at the outset of trial, and upon written notice to the Crown. There was no error in the trial judge’s exercise of his trial management powers, and there is no basis for this court to intervene.

Did the trial judge fail to provide the appellants with the minimum level of assistance that was necessary to ensure a fair trial?

[68] The appellants submit that at trial the self-represented defendants did not receive the minimum level of assistance from the court necessary to ensure a fair trial. Indeed, the appellants submit that, “[t]hroughout the entire legal process, the defendants never received this.”[^31]

[69] In R. v. McGibbon, the Ontario Court of Appeal addressed the issue of the trial judge’s general duty to assist an unrepresented accused in a criminal case, holding that

Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.[^32]

[70] Subsequently, in its 2017 decision in R. v. Richards, our Court of Appeal held that the duty owed by trial judges to self-represented litigants “is circumscribed by a standard of reasonableness.”[^33]

[71] In oral argument before me, Mr. Goldhar only touched on this ground very briefly, advising that he was content to rely upon his written submissions in the appellants’ factum.

[72] For my part, I have examined this issue at some length, and I should say at the outset that, in my view, there is no merit whatsoever in the contention of the appellants.

[73] Indeed, plainly contrary to the appellants’ bald assertion that “throughout the entire legal process, the defendants never received” the minimum level of requisite assistance, the transcript of the proceedings is positively replete with references to instances where the presiding judge of the court offered assistance to the defendants. Indeed, that assistance certainly did not begin with the trial judge.

[74] But just focussing on the trial, a review of the transcripts in this proceeding demonstrates that the trial judge clearly provided the appellants with the level of assistance that was necessary to ensure that they received a fair trial. For example, the trial judge assisted Mr. Goldhar by explaining the obligations of the Crown, by providing him with a guide for self-represented litigants and cautioning him on the complexities of trial, advising him of the importance of preparing a defence focused on the charges, in framing his questions to witnesses, by asking follow-up questions where necessary, and by instructing him on procedural matters such as producing documents, entering exhibits, and calling witnesses.

[75] More specifically, on the first day of trial before Marion J. on September 14, 2015:

a. His Honour explained the arraignment process and trial order, after acknowledging that Mr. Goldhar would be representing himself.[^34]

b. His Honour told Mr. Goldhar what he would need to make his Charter challenge related to the charges against him personally.[^35]

c. The Crown created an exhibit book for the matter and provided one, already tabbed, to Mr. Goldhar. (Tabbed copy for the court made later.)[^36]

d. His Honour confirmed with Mr. Goldhar about whether he wanted to make an opening statement, and when it could be made.[^37]

e. His Honour explained the process Mr. Goldhar was to use when referring to specific exhibits during his cross-examination.[^38]

f. His Honour described two exhibits for the court that Mr. Goldhar requested be added to the record.[^39]

g. His Honour guided Mr. Goldhar in properly phrasing his question for cross-examination of Ms. Manning.[^40]

h. His Honour clarified the significance of the questions asked by Mr. Goldhar regarding the lack of a signature or invoice to a B3 CBSA form.[^41]

i. His Honour clarified with a witness as to the significance of the testimony being elicited.[^42]

j. His Honour provided Mr. Goldhar with options on how to get an answer to a question he wanted to ask, while balancing the relevance concerns raised by Mr. Posliff.[^43]

k. His Honour rejected entering a printed statement from the CBSA website into the trial record because the author was unknown.[^44]

l. The Crown gave a reference in the exhibit book to assist Mr. Goldhar in following along with the examination-in-chief questioning.[^45]

m. His Honour clarified the author and date of a letter Mr. Goldhar wanted to use to question a witness, to see if it would be proper to do so.[^46]

n. His Honour explained the requirement of explaining a document’s relevance to questions that were planned to be asked in cross-examination before it could be added to the trial record.[^47]

o. His Honour clarified whether the document before the witness was appropriate to use for cross-examination.[^48]

p. His Honour explained the limits on leading a witness and supplying answers in cross-examination.[^49]

q. His Honour clarified and entered a document that served to speak to the licence concern Mr. Goldhar raised regarding Coolwater.[^50]

r. His Honour advised Mr. Goldhar about limits of what the witness can answer in relation to his questions about a document because she was not the author of it.[^51]

s. His Honour advised Mr. Goldhar of other avenues he could use to demonstrate his argument about the licence issue.[^52]

t. His Honour reiterated the standards for determining if evidence is reliable, issues with proving the truth of a letter’s contents, and the collateral attack rule.[^53]

u. His Honour explained how Mr. Goldhar could subpoena a witness or recall a Crown witness, if need be.[^54]

v. His Honour explained Inspector Morin’s use of his notes while testifying, because the self-represented litigant guide given to Mr. Goldhar advised him to object to notes being used during testimony.[^55]

w. His Honour required a copy of the notes being used as a memory aid by Inspector Morin to be given to Mr. Goldhar for review.[^56]

[76] On the second day of trial before Marion J. on September 15, 2015:

a. His Honour clarified the testimony of a witness in response to an objection by Mr. Goldhar.[^57]

b. His Honour explained how Mr. Goldhar could address his concern about the testimony in his cross-examination of the witness.[^58]

c. His Honour assisted with exhibit reference numbers so that Mr. Goldhar could follow along with the examination-in-chief by Mr. Posliff.[^59]

d. His Honour granted a continuance so that Mr. Goldhar could get copies of documents for the court and Mr. Posliff that he intended to use in cross-examination of Inspector Morin.[^60]

[77] On the third day of trial before Marion J. on September 16, 2015:

a. His Honour gave advice on how to get answers from a witness where a document was not going to be entered as an exhibit.[^61]

b. His Honour clarified the relevance of the question about the document that Mr. Goldhar was referring to in cross-examination of Inspector Morin.[^62]

c. His Honour asked questions to determine the relevance of Mr. Goldhar’s line of questioning from a series of documents, where Mr. Posliff had objected.[^63]

d. His Honour explained how to properly refer to exhibits so it would be clear on the record.[^64]

e. His Honour rephrased a question asked by Mr. Goldhar after a veiled objection by Mr. Posliff.[^65]

f. His Honour explained the limits on what kind of evidence a witness can give before it becomes inadmissible or speculation.[^66]

g. His Honour explained to Mr. Goldhar the need to show the relevance of documents and lines of questioning being put to the witness versus just trying to get as much information as possible and then make a narrative with it later.[^67]

h. His Honour advised Mr. Goldhar of how to introduce a document on the record so that the court would be aware where the line of questioning was going.[^68]

i. His Honour granted a 15-minute recess so that Mr. Goldhar could organize his documents to smooth out their entry into the record.[^69]

j. His Honour put clarifying questions on the record to establish the relevance of the document being presented to Inspector Morin.[^70]

k. His Honour put clarifying questions on the record to establish why the documents being put to a witness were relevant to the charges, and marked out the limits on witness testimony.[^71]

l. His Honour asked questions on the record to ensure he was following the theory of Mr. Goldhar’s line of questioning.[^72]

m. His Honour asked Mr. Goldhar to re-solicit evidence because how it came out originally was confusing.[^73]

n. His Honour clarified if there were documents related to the testimony being given so that it would be properly admissible evidence.[^74]

o. His Honour explained why a document would not be permitted as an exhibit, because it had not been verified or prepared for court.[^75]

p. His Honour explained his role as the gatekeeper of evidence, only permitting relevant information about the charges at hand.[^76]

q. His Honour provided Mr. Goldhar with guidance on how to properly reference exhibits to let Mr. Posliff follow the cross-examination.[^77]

r. His Honour asked a series of follow-up questions of the witness to ensure he knew the relevant information for considering the licensing issue regarding Coolwater.[^78]

s. His Honour advised Mr. Goldhar how else he could try and bring forward relevant evidence, instead of based on a witness’ belief.[^79]

t. His Honour outlined the boundaries of how Mr. Goldhar could proceed with his question.[^80]

u. His Honour clarified the reasons for written submissions and how he would like them done, based on a question asked by Mr. Posliff.[^81]

[78] I do not intend to take up more time here outlining the numerous interventions by the trial judge on the remaining days of trial. The point has been made. Suffice it to say that throughout the balance of the trial, the trial judge continued to intervene in order to provide assistance to Mr. Goldhar in his conduct of the trial on behalf of the defendants.

[79] As articulated by the Court of Appeal in R. v. Richards, the applicable standard is one of reasonableness. In my view, the level of assistance afforded by the trial judge to the appellants at trial certainly met that standard.

[80] In sum, this ground of appeal is utterly devoid of any merit.

Did the trial judge permit an unfair trial by failing to allow the appellants to claim a violation of their right to be tried within a reasonable time, contrary to s. 11(b) of the Charter?

[81] In oral argument before me, Mr. Goldhar submitted that the appellants were denied the ability to claim a breach of their right to be tried within a reasonable time, contrary to s. 11(b) of the Charter.

[82] There is manifestly no merit to that submission. As reviewed above, at the conclusion of the trial, the trial judge afforded the appellants the opportunity to file Charter applications. The appellants availed themselves of this opportunity and filed various applications before the trial judge, which he then addressed those claims in his reasons for judgment of December 18, 2015.

[83] It is telling that, while the applications filed by the appellants at the conclusion of the trial included claims under, for example, ss. 7 and 11(d) of the Charter, the appellants advanced no allegation of violation of their rights under s. 11(b) of the Charter, despite being given the clear opportunity to do so.

[84] Indeed, Mr. Goldhar conceded in oral argument before me that never once throughout the trial did the appellants ever complain about delay or raise any claim that their rights under s. 11(b) had been infringed.

[85] The respondent Crown takes the position that as the appellants did not raise any s. 11(b) Charter argument at trial, they should not be permitted to do so for the first time on appeal. The Crown maintains that this claim could and should have been raised in the court below. The Crown submits that appellate courts have held that they will generally not entertain new issues on appeal, especially where it requires the determination of new facts,[^82] and that this general rule applies to constitutional arguments or challenges raised for the first time on appeal, regardless of whether an appellant invokes the remedial powers of s. 24 or the declaratory or nullifying authority of s. 52(1).[^83]

[86] There is merit in the Crown’s position. As Doherty J.A. held in R. v. Rollocks, the general rule is that where an issue is not raised at trial, it cannot be raised on appeal:

Normally where an issue is not raised at trial it cannot be raised on appeal. Appellate courts sit in review of decisions made in trial courts. The requirement that issues be raised and adjudicated upon at trial before they will be considered on appeal is inherent in the appellate function.[^84]

[87] That said, as the Crown here acknowledges, appellate courts have a discretion to hear and decide new issues on appeal.[^85] However, the Supreme Court of Canada has held that “this discretion is not exercised routinely or lightly.” The test is a stringent one.[^86]

[88] In exercising that discretion, “the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial.”[^87]

[89] While I share the misgivings of the Crown, having considered the relevant factors as to whether to entertain this new issue on appeal, in the circumstances of the instant case I have decided to exercise my discretion in favour of the appellants. The transcripts of the proceedings below are available to the court. In argument before me, the Crown spent some time addressing the s. 11(b) issue and, indeed, perhaps more time addressing this particular issue than the other grounds of appeal. Moreover, Ms. Bailey, co-counsel for the respondent Crown, spent some considerable effort producing a very helpful summary of the proceedings in the court below, which was shared with Mr. Goldhar and filed with this court. On balance, I believe the issue can be fairly dealt with on appeal.

[90] In para. 15 of the appellants’ factum, Mr. Goldhar relies upon, not surprisingly, the seminal decision of the Supreme Court of Canada in R. v. Jordan.[^88] He argues that all of the appellants were charged on April 10, 2012, that the trial commenced on September 14, 2015, and that the resulting 41 months’ delay is far in excess of the presumptive ceiling of 18 months established by Jordan for proceedings in provincial court. In fairness, when one considers that the trial decision was not delivered until December 18, 2015, the total delay is in the order of 44 months.

[91] There is no doubt that this proceeding has had a very protracted history. That said, the submission of the appellants and the reliance on Jordan is somewhat misplaced. As noted, the trial judge delivered his decision and convicted the appellants on December 18, 2015. The Supreme Court did not release its decision in Jordan until July 8, 2016 – that was seven months after the trial judge delivered his decision convicting the appellants and five months after he had sentenced them.

[92] Put differently, had the appellants availed themselves of the opportunity to file a Charter application based on s. 11(b) of the Charter at the end of the trial, as was open to them based on the trial judge’s invitation, that s. 11(b) application would have been heard and determined without regard for the Supreme Court’s decision in Jordan, which was then some seven months off in the future.

[93] Accordingly, as the instant case is one where the trial entirely concluded months before Jordan was decided, it is plain and obvious that the parties in this proceeding were operating under the previous s. 11(b) framework established under R. v. Morin.[^89] Indeed, Morin was the then-governing law at the time of the proceedings below.

[94] In Jordan, the Supreme Court held that the new Jordan framework is applicable to any case that was in the court system when Jordan was released.[^90] Assuming that a case such as the present, where a conviction has been rendered and a sentence imposed, can still be said to be a case that remains “in the court system” for Jordan purposes, the instant case would be a transitional case.

[95] One of the transitional exceptional circumstances recognized by Jordan arises where “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 to the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice.[^91]

[96] In the instant case, that the proceeding below was entirely conducted and concluded during the tenure of the previous Morin framework, I am satisfied that this is a case where the delay must be assessed “based on the parties’ reasonable reliance on the law as it previously existed.”

[97] It is also highly relevant that throughout the proceedings below the appellants, as Mr. Goldhar conceded on appeal, never once complained of delay or raised the prospect of a breach of their s. 11(b) rights.

[98] In the same vein, there is no evidence of any actual prejudice suffered by the appellants below.

[99] Indeed, a review of the proceedings below, as reflected in the very useful summary prepared by Ms. Bailey, indicates that it was not Mr. Goldhar or the appellants who were concerned about the delay in the proceedings – on the contrary, it was the court and the Crown who repeatedly raised concern over the progress of the proceedings below.

[100] Indeed, in this regard, I note the following exchanges, inter alia, in the record of the proceedings below:

a. On February 11, 2013, the court expressed concern that the “matter’s been outstanding for almost a year.”[^92]

b. On March 4, 2013, the nineteenth court attendance, the court asked an agent attending for Mr. Miller, who was then representing the appellants, whether Mr. Miller was prepared to waive delay or whether there was any reason the matter could not be set for trial. The agent indicated that she did not have instructions regarding trial readiness or waiver of delay, and the matter was adjourned to March 11, 2013.[^93]

c. On March 18, 2013, the twenty-first court attendance, contrary to the court’s direction on the two previous appearances, the agent for counsel for the appellants still did not have instructions and requested an adjournment to April 8, 2013.[^94]

d. On April 8, 2013, the court expressed its frustration with the lack of progress. The agent for defence counsel requested an adjournment “for two further weeks for instructions.” The matter was adjourned to April 22, 2013, to set a trial date.[^95]

e. On April 22, 2013, the matter was adjourned to May 30, 2013, for a judicial pretrial conference peremptory to the defence.[^96]

f. On June 17, 2013, the twenty-sixth attendance, defence counsel indicated he would be bringing an application to be removed as counsel of record. The court gave voice to its delay concerns. The matter was adjourned to June 24, 2013, to set a date for the hearing of the application.[^97]

g. On June 24, 2013, at the request of the defence, the application of counsel to get off the record was adjourned to June 28, 2013, and, at the Crown’s request, the court ordered the accused parties to be present.[^98]

h. On June 28, 2013, the accused parties failed to attend, and at the request of defence counsel the application was adjourned to July 8, 2013. Again, the court ordered the defendants to be present.[^99]

i. On July 8, 2013, again the accused parties failed to attend. Defence counsel requested a further adjournment to July 12, 2013.

j. On July 12, 2013, the thirtieth attendance, the accused parties failed to attend. The Crown expressed “serious concern about delay,” lack of progress, as well as that the accused parties have been repeatedly ordered to be present and have failed to attend.[^100]

k. On September 13, 2013, Mr. Goldhar attended and requested a six week adjournment to obtain disclosure and seek legal advice. The adjournment was opposed by the Crown counsel, who indicated the Crown’s concerns for delay. The matter was adjourned to October 4, 2013, to be spoken to regarding progress.[^101]

l. On March 13, 2014, the forty-first attendance, the matter was scheduled for a judicial pretrial conference but (new) defence counsel requested an adjournment to seek instructions. The Crown again expressed its concern for the matter being “quite dated.” The matter was adjourned to a further judicial pretrial on May 8, 2014, and the accused parties were ordered to be present.[^102]

m. On May 8, 2014, the contemplated judicial pretrial did not proceed, and defence counsel was removed from the record for “a breakdown in the relationship of the solicitor and client.” Mr. Goldhar advised the court that he would not be retaining new counsel for trial, and the matter was then adjourned to May 12, 2014, peremptory to the defence, to set a date for trial.[^103]

n. On May 26, 2014, the forty-fourth attendance, the trial coordinator indicated that the trial could be scheduled for March or April of 2015. Mr. Goldhar specifically requested that the matter be scheduled for trial at a date after April 20, 2015.[^104]

[101] In sum, upon my review of the transcripts, far from being prejudiced by the delay in this proceeding, it was Mr. Goldhar and the appellants who were the primary cause of the delay. The inference that I would draw from my review is that, never having complained of any prejudice or delay during the proceedings, the appellants were content to have the matter linger on, and when it actually came to trial, it was only after the appellants were convicted and sentenced that, some months later, the Jordan decision presented itself, and the appellants then seized on that development to raise, for the very first time, some concern that their right to be tried within a reasonable time had been impacted. In my view, the s. 11(b) claim does not lie in the mouths of the appellants.

[102] I conclude that there has been no breach of the appellants’ rights under s. 11(b) of the Charter, and I dismiss this ground of appeal.

Other grounds

[103] As I have said, in oral argument before me, Mr. Goldhar advised that he was content to rely on his factum for the balance of his various grounds of appeal.

[104] Among other grounds, Mr. Goldhar did not address his appeal as to sentence in argument before me. In my view, it is appropriate that I deal with that ground in particular.

[105] I agree with the submissions of the Crown that appellate courts afford sentencing judges considerable deference when reviewing the fitness of a sentence. Generally speaking, an appellate court may vary a sentence only if it reflects an error in principle, demonstrates a failure to consider a relevant factor or give appropriate weight to a relevant factor, or if it is demonstrably unfit.[^105]

[106] I also accept the Crown’s position that sentences for offences concerned with the protection of public safety in relation to food require an emphasis on the objectives of denunciation and deterrence. In many instances, like the present case, the objectives may be satisfied by the imposition of monetary penalties.

[107] Although the sentences imposed below were at the low-end of the range, there is good reason to defer to the sentencing judge’s decision. At the time of sentencing, a number of factors were taken into account by the judge, as follows:

a. the quantity of the fish involved in each count;

b. the nature of the conduct;

c. the number of counts;

d. the fact that, in some instances, multiple charges arose from one importation;

e. the fact that Mr. Goldhar was charged on each count together with the corporations;

f. the fact that Mr. Goldhar was the principal operator of the fish importation scheme;

g. the fact that the inspection system relies upon self-reporting with respect to importation of food and that the public counts on timely and accurate reporting in order to ensure that the food product available publicly is suitable for personal consumption; and

h. the fact that, as a result of the non-reporting, there was no ability for the CFIA to inspect or determine whether or not fish product could be released for public consumption.

[108] Having regard to the factor considered by the sentencing judge, as well as the additional reasons set out in paras. 86-95 of the respondent Crown’s factum, which reasons I accept and adopt as my own, I conclude that the fines imposed in the case at bar were just and appropriate in this case. This was not an importation scheme of the highest echelon. The sentencing judge made no error in law or principle, and the sentence is not demonstrably unfit. It should not be overturned.

[109] As for the balance of the grounds of appeal set out in the appellants’ factum that were not addressed by Mr. Goldhar in oral argument before me, many of which overlap with each other and with those grounds that were addressed in argument before me, I conclude that there is no merit in any of those grounds for the reasons that are set out in the respondent Crown’s factum at paras. 72-85, which reasons I accept and adopt as my own.

Conclusion

[110] For the reasons above, I conclude that the appellants have failed to establish that the trial judge’s findings were unreasonable or unsupported by the evidence, that he erred on some question of law, or that there was otherwise a miscarriage of justice on any ground.

[111] Accordingly, the appeal must be dismissed.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Date: February 21, 2019

[^1]: Criminal Code, R.S.C. 1985, c. C-46. The Crown proceeded by way of summary conviction at trial. For the purposes of appeal, by reason of s. 34(2) of the Interpretation Act, R.S.C. 1985, c. I-21, all the provisions of the Criminal Code “relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.”

[^2]: Fish Inspection Act, R.S.C. 1985, c. F-12 [Fish Inspection Act].

[^3]: Fish Inspection Regulations, 1983, C.R.C., c. 802 [Fish Inspection Regulations].

[^4]: Food and Drugs Act, R.S.C. 1985, c. F-27 [Food and Drug Act].

[^5]: Food and Drug Regulations, C.R.C., c. 870 [Food and Drug Regulations].

[^6]: Fish Inspection Regulations, s. 6(2)(d).

[^7]: Ibid., s. 6(2)(e).

[^8]: Ibid., s. 6(2.2)(b) and (c).

[^9]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

[^10]: Transcript of the Reasons for Judgment in R. v. Gerald Goldhar, Jer-Mar Foods Ltd., and Coolwater Fish Ltd., of R. Marion J., Ontario Court of Justice, delivered December 18, 2015 [Reasons for Judgment]. Mr. Goldhar was found guilty on counts 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 18; Jer-Mar was found guilty on counts 2, 3, and 4; and Coolwater was found guilty on counts 7, 8, 9, 11, 12, 15, and 16.

[^11]: Appellant’s Factum, dated January 4, 2018, filed January 11, 2018 [“appellants’ factum”].

[^12]: Respondent’s Factum, dated February 15, 2018, filed February 16, 2018 [“respondent’s factum”].

[^13]: Some of this basic background information is taken from my decision on the appellants’ previous application for, inter alia, a stay of the fines pending appeal, in support of which Mr. Goldhar filed an affidavit sworn by him on May 9, 2016: see R. v. Goldhar, 2017 ONSC 494 (S.C.J.). Our Court of Appeal has held that a judge is entitled to take judicial notice of what is in the court file: Wallbridge v. Brunning, 2018 ONCA 363, 422 D.L.R. (4th) 305, at para. 18.

[^14]: R. v. Smits, 2012 ONCA 524, 36 M.V.R. (6th) 217 (C.A.), at para. 67 [citations omitted], citing R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785, 107 C.C.C. (3d) 97 (C.A.), at pp. 791-792 [cited to O.R.].

[^15]: R. v. Grosse, at pp. 791-792, citing R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, at pp. 131-132 [cited to S.C.R.].

[^16]: R. v. Polanco, 2018 ONCA 444, at para. 20 [citations omitted], citing R. v. O’Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at para. 36.

[^17]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 5, 6, 10, and 29-20.

[^18]: Ibid., at para. 8.

[^19]: Reasons for Judgment, at p. 14.

[^20]: See Fish Inspection Regulations, s. 3(2)(a).

[^21]: Appellant’s factum, at p. 12, para. 18.

[^22]: Reasons for Judgment, at pp. 14-17.

[^23]: Reasons for Judgment, at pp. 22-24.

[^24]: Ibid., at pp. 26-27. To the same effect is the trial judge’s conclusion on count four: “I do not accept Mr. Goldhar’s explanation that a FIN was not required as the importation was for personal use.” See Reasons for Judgment, at p. 19.

[^25]: Respondent’s Record, filed February 16, 2018, Affidavit of Edward J. Posliff sworn November 13, 2015, at paras. 14-20.

[^26]: Reasons for Judgment, at pp. 2-6.

[^27]: R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 136-137.

[^28]: In para. 14 of the appellants’ factum, Mr. Goldhar states that Mr. Miller was never retained. However, that statement is plainly inconsistent with the transcript of proceedings, which clearly indicates that Mr. Miller repeatedly appeared before the court on behalf of the trial defendants.

[^29]: R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481, 180 C.C.C. (3d) 498, 235 D.L.R. (4th) 131 (C.A.), at paras. 40 and 57.

[^30]: R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506, 138 C.C.C. (3d) 225, 178 D.L.R. (4th) 466 (C.A.), at para. 59.

[^31]: Appellant’s factum, at pp. 8-9, para. 17.

[^32]: R. v. McGibbon (1988), 45 C.C.C. (3d) 334, 1988 CanLII 149 (Ont. C.A.), at p. 347 [cited to C.C.C.]. See also R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 55 O.R. (3d) 161, 156 C.C.C. (3d) 1 (C.A.), at para. 31.

[^33]: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 111.

[^34]: Transcript of the proceedings at trial, September 14, 2015, at pp. 1-2.

[^35]: Ibid., at p. 16.

[^36]: Ibid., at pp. 17-18.

[^37]: Ibid., at p. 23.

[^38]: Ibid., at p. 52.

[^39]: Ibid., at pp. 54-55.

[^40]: Ibid., at p. 57.

[^41]: Ibid., at p. 59.

[^42]: Ibid., at pp. 64-65.

[^43]: Ibid., at pp. 66-67.

[^44]: Ibid., at p. 68.

[^45]: Ibid., at p. 76.

[^46]: Ibid., at p. 88.

[^47]: Ibid., at p. 92.

[^48]: Ibid., at p. 97.

[^49]: Ibid., at pp. 98-99.

[^50]: Ibid., at p. 104.

[^51]: Ibid., at p. 105.

[^52]: Ibid., at pp. 109-110.

[^53]: Ibid., at p. 111.

[^54]: Ibid., at pp. 113-114.

[^55]: Ibid., at p. 117.

[^56]: Ibid., at p. 124.

[^57]: Transcript of the proceedings at trial, September 15, 2015, at p. 9.

[^58]: Ibid., at p. 13.

[^59]: Ibid., at p. 38.

[^60]: Ibid., at pp. 51-52.

[^61]: Transcript of the proceedings at trial, September 16, 2015, at pp. 5-6.

[^62]: Ibid., at p. 7.

[^63]: Ibid., at pp. 9-12.

[^64]: Ibid., at pp. 14-15.

[^65]: Ibid., at pp. 16-17.

[^66]: Ibid., at pp. 18-19.

[^67]: Ibid., at pp. 21-23.

[^68]: Ibid., at p. 26.

[^69]: Ibid., at p. 34.

[^70]: Ibid., at p. 37.

[^71]: Ibid., at p. 40.

[^72]: Ibid., at p. 44.

[^73]: Ibid., at p. 47.

[^74]: Ibid., at p. 50.

[^75]: Ibid., at p. 51.

[^76]: Ibid., at p. 52.

[^77]: Ibid., at p. 56.

[^78]: Ibid., at pp. 59-60.

[^79]: Ibid., at p. 63.

[^80]: Ibid., at pp. 67-68.

[^81]: Ibid., at pp. 83-85.

[^82]: R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, at pp. 924 and 926-927. See also R. v. Roach [sub nom. R. v. R.(K.)], 2009 ONCA 156, 185 C.R.R. (2d) 333, 246 O.A.C. 96, at para. 6 [Roach].

[^83]: Roach, at para. 6.

[^84]: R. v. Rollocks (1994), 1994 CanLII 8728 (ON CA), 19 O.R. (3d) 448, 91 C.C.C. (3d) 193 (C.A.), at p. 453.

[^85]: Roach, at para. 7; quoted with approval in R. v. Dhanaswar, 2016 ONCA 229, at para. 5.

[^86]: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 5 and 22.

[^87]: Roach, at para. 7.

[^88]: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, 335 C.C.C. (3d) 403 [Jordan].

[^89]: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 [Morin].

[^90]: Jordan, at para. 96; and R. v. Coulter, 2016 ONCA 704, 340 C.C.C. (3d) 429, at paras. 31 and 55 [Coulter].

[^91]: Jordan, at para. 96; and Coulter, at 56.

[^92]: Transcript of proceedings at court, February 11, 2013, at p. 1, l. 20.

[^93]: Transcript of proceedings at court, March 4, 2013, at p. 1, ll. 7 and 27.

[^94]: Transcript of proceedings at court, March 18, 2013, at p. 1, l. 20.

[^95]: Transcript of proceedings at court, April 8, 2013, at p. 1, l. 25.

[^96]: Transcript of proceedings at court, April 22, 2013, at p. 1, l. 25.

[^97]: Transcript of proceedings at court, June 17, 2013, at pp. 2-3.

[^98]: Transcript of proceedings at court, June 24, 2013, at p. 1, ll. 13-18.

[^99]: Transcript of proceedings at court, June 28, 2013, at p. 2.

[^100]: Transcript of proceedings at court, July 12, 2013, at pp. 2-3.

[^101]: Transcript of proceedings at court, September 13, 2013, at p. 6.

[^102]: Transcript of proceedings at court, March 13, 2014, at p. 1, l. 17.

[^103]: Transcript of proceedings at court, May 8, 2014, at pp. 1-2.

[^104]: Transcript of proceedings at court, May 26, 2014, at p. 3.

[^105]: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.