COURT FILE NO.: CR-19-00000530-0000 DATE: 2021-08-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LADDY JEFFERY POGACHAR Applicant
Counsel: Mabel Lai and Rebecca De Filippis, Counsel for the Crown Melanie Webb and Sara Romeih, Counsel for the Applicant
HEARD: July 27, 2021
BEFORE: M.A. CODE J.
REASONS FOR JUDGeMENT ON Section 11(b) MOTION
A. OVERVIEW AND BACKGROUND
[1] The Applicant Laddy Pogachar (hereinafter, Pogachar) is charged in an Indictment that is awaiting trial in this Court. The two count Indictment alleges fraud over and theft over. It is presently scheduled for trial by jury on November 22, 2021. I was appointed to act as “the case management judge” by Forestell J. on July 27, 2021, pursuant to s. 551.1 of the Criminal Code. I heard the present pre-trial Motion on July 27, 2021. At the end of oral argument I dismissed the Motion, with written reasons to follow. These are my Reasons for Judgement on the Motion.
[2] The present pre-trial Motion seeks to stay the trial proceedings on the basis of an alleged violation of the accused’s s. 11(b) Charter right to trial within a reasonable time. Pogachar and his wife, Paola Lombardi, were charged with the present offences on September 17, 2013. It is anticipated that the scheduled four-week jury trial will end on December 17, 2021. As a result, the total delay in the case will be 99 months, or eight years and three months. This is more than three times greater than the 30-month presumptive ceiling for s. 11(b) delay set by the Supreme Court in Jordan. See: R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.).
[3] The majority of the lengthy period of total delay occurred while Pogachar was outside of Canada. He and his then wife Lombardi had incorporated an entity, New Life Capital Corporation, in 2005. It was based in Toronto and it raised approximately $22 million from investors, through the sale of private shares. Between November 7, 2007 and July 25, 2008, it is alleged that Pogachar and Lombardi diverted over $7 million of investor funds for their own personal use. Between 2004 and 2008, they had incorporated four companies in the Bahamas and they allegedly transferred the misappropriated monies to these companies.
[4] In August 2008, the Ontario Securities Commission (the OSC) issued a cease trade order and filed a statement of allegations in relation to this matter. In addition, civil proceedings were commenced in this Court and in December 2008, KPMG was appointed by the Court as a Receiver and Manager. The OSC proceedings were adjourned several times, including at the request of Pogachar and Lombardi. On December 6 and 7, 2011, Pogachar and Lombardi both wrote to the OSC and advised that they would not attend the OSC hearing. On January 26, 2012, the OSC gave judgement on the merits, holding that Pogachar and Lombardi had violated Ontario securities law. On May 11, 2012 the OSC imposed various sanctions, including disgorgement of $21,0908,607.
[5] While the above OSC and civil Commercial List aspects of the case were proceeding, from 2008 to 2012, the Receiver and Manager KPMG made a criminal complaint to the RCMP on February 17, 2010. The complaint alleged that $7 million in investor funds had been improperly transferred to Pogachar and Lombardi’s Bahamian companies. The RCMP conducted a preliminary review of the matter and commenced a formal criminal investigation on September 3, 2010. After a three-year investigation, which included MLAT requests to the Bahamas, witness interviews and documents production orders in the Bahamas, and a forensic accounting analysis, the present criminal charges were laid on September 17, 2013.
[6] During the above pre-charge investigative period, between 2010 and 2013, it is unclear exactly where Pogachar was residing. The RCMP had received information to the effect that his wife Lombardi was residing in the Bahamas and that she had returned to Canada on occasion. KPMG advised the RCMP on August 29, 2011 that Pogachar was living in a “South American country”. On March 11, 2013, the RCMP learned from Panamanian authorities that Pogachar had entered Panama on February 3, 2013, had left for Guatemala two weeks later, on February 17, 2013, and was staying at “the Hotel Toscana”. The Guatemalan authorities advised the RCMP on May 6, 2013 of Pogachar’s address in Guatemala. Finally, on September 11, 2013 (six days before the Ontario criminal charges were laid), a source in Mexico advised the RCMP that Pogachar “had listed himself as a tourist in Guatemala”.
[7] I will discuss Pogachar’s whereabouts during the post-charge period, after September 17, 2013, when analysing whether his time in Central America constitutes “defence delay” or a “discrete exceptional circumstance” under the Jordan framework. On May 4, 2018, almost five years after the charges were laid, Pogachar was found and arrested in what was described as “a remote northern region” of Panama, known as Bocas Del Toro. He was in possession of false identification, including a “forged passport” and a Bahamian driver’s license in the name of “Robert Martin”. He was identified and arrested by the Panamanian authorities on the basis of a photograph. Pogachar remained in custody in Panama for one and a half months, until he was extradited to Canada on June 22, 2018.
[8] In light of the above history, it can be seen that the post-extradition period of delay, while the case was before the courts in Canada from first appearance on June 23, 2018 until the anticipated end of trial on December 17, 2021, will be just under 42 months. I am satisfied that five periods of “defence delay” and “exceptional circumstance” delay during this post-extradition period reduce the 42-month total delay to less than the 30-month Jordan presumptive ceiling. In particular, it was the defence that sought and obtained an adjournment of the first trial date in this Court, scheduled for November 16, 2020, because the defence was not ready to proceed. As a result of this last adjournment, the case became part of the larger Covid-19 pandemic backlog. If this final approximately 13-month period of delay (from November 16, 2020 to December 17, 2021) is deducted, it alone reduces the relevant delay before the courts in Canada to less than the 30-month Jordan presumptive ceiling.
[9] As a result of the above background and overview, it is apparent that the real issue on this s. 11(b) Motion is how to properly characterize the lengthy period of time when Pogachar appears to have been in Central America, between September 17, 2013 when he was charged and June 22, 2018 when he was extradited from Panama. The Crown submits that this entire four year and nine month period is either “defence delay” or a “discrete exceptional circumstance”. The Applicant submits that it is delay caused entirely by inadequate efforts to find and arrest Pogachar and is, therefore, neither “defence delay” nor is it a “discrete exceptional circumstance”. The Applicant’s position, in this regard, is that no reasonable steps were taken by the relevant authorities to mitigate any unavoidable delay caused by the need to extradite Pogachar. I now turn to that issue which requires analysis of both the facts of the case and the applicable legal principles relating to the pre-extradition period of delay.
B. ANALYSIS: THE DELAY PRIOR TO EXTRADITION
[10] The Jordan decision was released on July 8, 2016, almost two years before Pogachar’s arrest and extradition from Panama. The majority judgement briefly referred to the way in which delay caused by the need to extradite an accused might be treated under the new Jordan framework for s. 11(b) analysis. This reference to extradition delay is found in the part of the judgement where the majority discussed “discrete events” that could amount to “exceptional circumstances”:
Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.
It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition [Italics in the original, underlining added].
See: R. v. Jordan, supra at paras. 69-72.
[11] It can be seen that the above Jordan approach to this issue requires the Crown to take “reasonable steps” to extradite an accused who is residing outside the country. The pre-Jordan s. 11(b) case law had taken a somewhat similar approach to this kind of delay, albeit in the context of the different Smith, Askov, and Morin framework for s. 11(b) analysis that applied at that time. In the leading Ontario case, R. v. White (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225 at 240 (Ont. C.A.), Laskin J.A. and Charron J.A. (as she then was) jointly gave the judgement of the Court and stated:
Because White knew charges were outstanding against him yet refused to return to Canada, tell the Crown where he was or even contact the Crown through a third party, the delay must be attributable to him unless the Crown knew his whereabouts and deliberately delayed apprehending him or did not diligently bring him to trial: see U.S. v. Deleon. The evidence before the trial judge reasonably supported his findings that the Crown had taken reasonable steps to find White and that the Crown did not know where White lived until late March 1989 [Emphasis added].
[12] The Nova Scotia Court of Appeal applied the above statement of law from White, some 14 years later, in R. v. MacIntosh (2011), 2011 NSCA 111, 281 C.C.C. (3d) 291 at paras. 65-70 (N.S.C.A.), aff’d (2013), 2013 SCC 23, 296 C.C.C. (3d) 480 (S.C.C.). That decision was affirmed unanimously by the Supreme Court. In the MacIntosh case, it took the authorities almost 12 years to extradite the accused from India. The Court stated that the authorities knew “exactly where the appellant was located” in India. Indeed, they had “hand delivered” documents to him at his address in India. In addition, MacIntosh “did nothing to hide or hinder the authorities”. In spite of knowing exactly where to find the accused, the authorities “did nothing to pursue him” for lengthy unexplained periods of time. On these facts, it was held that the Crown did not take “reasonable steps” to extradite MacIntosh and the 12-year delay in extraditing him was characterized as “Crown delay” and not “defence delay”. Also see: R. v. Singleton (2014), 2014 BCCA 232, 310 C.C.C. (3d) 534 (B.C.C.A.), where the principles set out in White and MacIntosh were applied by the B.C. Court of Appeal.
[13] I recently addressed an analogous issue, namely, delay by the police in executing a domestic arrest warrant in a post-Jordan case. See: R. v. Khiar and Osman, 2021 ONSC 4677 at paras. 50-56. In that case, the Homicide Squad had sworn an Information and obtained an arrest warrant charging Osman as an accessory after the fact to a Toronto murder. However, Osman resided in Ottawa and the police did not execute the arrest warrant until four months later. I stated the following in relation to this initial period of delay:
… I am satisfied that the 30 month Jordan presumptive ceiling commenced on May 28, 2019 when the Information was sworn and the total delay in this case is, therefore, 35 months and 16 days. I am also satisfied that the four month delay in arresting Osman should not be deducted. Ms. Schofield fairly conceded that when an accused has gone into hiding or is actively evading arrest, these kinds of delays in effecting an arrest should be deducted as “defence delay.” A somewhat analogous situation arose in R. v. Burke (2018), 2018 ONCA 594, 47 C.R. (7th) 282 (Ont. C.A.), where the accused had been arrested and charged in Ontario and was released on bail. He fled to the United States, changed his identity, was arrested on U.S. charges, and ended up serving a lengthy U.S. sentence before he was eventually returned to Canada to face the now historical Ontario charges. The Court of Appeal held that “all of the delay caused by the respondent’s flight in violation of his bail conditions should be treated as defence delay”:
The respondent admitted to Toronto police that his express purpose in fleeing was to avoid capture and prosecution. The terms of his bail required he remain within the jurisdiction.
The delay from the time the charges were laid until the time the respondent was returned to Canada was illegitimate defence delay. It was caused directly by the respondent, whose actions were not taken to respond to the charges, but were intended to frustrate them.
There is no evidence that Osman was in hiding or was actively evading the police. Indeed, he was already on bail on other outstanding charges in the Ottawa area, and the Toronto Homicide Squad officers were aware of his recognizance on these pre-existing charges. Ms. Jackson [counsel for the Crown] advised the Court that she could not disclose the reasons for what appears to have been a deliberate police decision to delay Osman’s arrest. I infer that there may have been some ongoing police investigation but the Crown has decided to keep the matter confidential. The suspicious evidence discovered by the police relating to Osman’s and Khiar’s activities during the early morning hours of February 8, 2019, and the further evidence discovered upon Khiar’s arrest on February 20, 2019, (all of which is summarized above when analyzing the “after the fact” conduct Motion), tends to support the suggestion that there may have been an ongoing investigation. However, on the present state of the record before me, the reason for this initial four month period of delay in arresting Osman has been kept confidential and it should not be deducted, either as “defence delay” or as being due to some investigative “case complexity” [Emphasis added].
[14] The pre-Jordan approach to extradition delay, illustrated by cases like White, MacIntosh, and Singleton, involved a causation inquiry into “the reasons for the delay”. The pre-Jordan framework for s. 11(b) analysis had emerged from R. v. Smith (1989), 1989 12 (SCC), 52 C.C.C. (3d) 97 (S.C.C.), R. v. Askov (1990), 1990 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.), and R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.). That Supreme Court trilogy held that s. 11(b) of the Charter required the balancing of four factors, in order to determine whether there had been a violation of the right to trial within a reasonable time. The third of the four factors was “the reasons for the delay”. This factor was important because it determined the weight to be given to any period of delay. Delays caused by the accused’s own actions would “justify” delay and would “weigh against the defence” because they inferred that the delay was beneficial to the accused and did not cause “prejudice” (which was the fourth factor). On the other hand, delays caused by the Crown would “weigh against the Crown” and tended to infer “prejudice” to the accused. See, e.g. R. v. Lahiry et al (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525 at paras. 3-9 and 77-85 (Ont. S.C.J.) where the authorities on this point are summarized. Within this framework, the analysis of extradition delay that emerged from cases like White, MacIntosh, and Singleton required the Crown to take “reasonable steps” to find, arrest, and extradite an accused who was residing outside Canada. The resolution of this issue turned substantially on whether the police knew the accused’s whereabouts abroad (as in MacIntosh) or did not know his whereabouts (as in White and Singleton). Depending on whether the Crown did or did not take “reasonable steps”, the reasons for a period of extradition delay would be treated either as “defence delay” (in White and Singleton) or “Crown delay” (in MacIntosh).
[15] As can be seen from the four paragraphs in the Jordan decision set out above (at para. 10), the Court in that case appeared to adopt a similar “reasonable steps” requirement in its discussion of extradition delay as a “discrete event” that could amount to an “exceptional circumstance”. However, the rationale for the “reasonable steps” requirement in Jordan was no longer the link between “the reasons for the delay” and “prejudice”, which were the two critical factors in the old Smith, Askov, and Morin framework. Rather, the “reasonable steps” requirement under the new Jordan framework was linked to the Crown’s duty “to mitigate” unavoidable delays and “to act proactively,” in order to prospectively prevent unreasonable delays. See: R. v. Jordan, supra at paras. 70, 75, and 108-112. However, the new Jordan framework also continued to make it clear that “calculated defence tactics aimed at causing delay” are to be deducted and completely discounted as “defence delay”, adopting the Court’s earlier pre-Jordan analysis of this issue, as set out in Askov. See: R. v. Jordan, supra at para. 63.
[16] In my view, the pre-Jordan and post-Jordan frameworks for s. 11 (b) analysis both require the Court to assess whether the Crown took “reasonable steps” to find, arrest, and extradite an accused who is residing outside Canada. In addition, they both require the Court to assess whether the accused has taken deliberate steps to evade arrest and to thereby delay the trial. These two inquiries form part of two fundamentally different s. 11(b) analytical frameworks that applied at different stages of the pre-extradition period of delay in the present case. Nevertheless, they are broadly similar factual inquiries in both the pre-Jordan and post-Jordan eras.
[17] In order to apply the legal principles that emerge from the above summarized authorities in the present case, there are two factual issues that need to be resolved: first, whether the Crown and the police took “reasonable steps” in the circumstances known to them, to find, arrest, and extradite Pogachar after the Information was sworn on September 17, 2013; and second, whether Pogachar went into hiding and was actively evading arrest, once he learned that criminal charges had been laid against him in Ontario. These two factual issues are logically interrelated and they can be analysed together.
[18] The factual record relating to these two issues, filed on the s. 11(b) Charter Motion, is detailed and lengthy. The key facts, in my view, are as follows:
In the period leading up to the swearing of the Information, the police learned that Pogachar had last entered Canada in 2008 and that he had been travelling extensively. In particular, the police had information that Pogachar had entered both Panama and Guatemala in early 2013, he had an address in Guatemala in 2013, but his status in that country was as a “tourist”. In other words, he did not have any kind of permanent residency status in Guatemala. The police also learned in late 2012 that Pogachar had separated from his wife Lombardi but that she continued to reside in the Bahamas. Pogachar’s father refused to tell police where his son was living. He had not attended the OSC proceedings in Ontario in 2012. In late 2012, he renewed his Canadian passport from a consular office located in Jamaica;
In light of all the above information, it appears that the RCMP reasonably anticipated that an international “Red Notice” arrest warrant and extradition proceedings would be required, once charges were laid. As a result, in July and August 2013, shortly before the Information was sworn, the RCMP began making inquiries about obtaining a Red Notice and using the Guatemalan address that they had for Pogachar in anticipated extradition proceedings. As soon as charges were laid on September 17, 2013, the RCMP began meeting with lawyers at the Crown Law Office in Toronto and began preparing the materials required for extradition by the IAG at the Department of Justice in Ottawa. The Guatemala “tourist” address that the RCMP had for Pogachar was placed on the sworn Information;
The package of materials prepared by the police and the Crown in support of the request for extradition was not filed in the record before me on the s. 11(b) Charter Motion. I was advised by Crown counsel that it contained both an Affidavit of Fact and an Affidavit of Law and that it sought extradition on charges of fraud, theft, money laundering, and possession of proceeds of crime, as well as seeking Pogachar’s immediate arrest on a provisional warrant. While these materials were being prepared, the RCMP received important new information concerning Pogachar’s whereabouts. He had attended at the Canadian Consulate in Panama City on February 13, 2014 and applied for renewal of his Canadian passport. On the renewal form, he gave his “permanent residence” as an apartment in Panama City. He stated on the form that this had been his address for the past two years but that he also had an address in Guatemala during this period. The Guatemala address that he gave on the passport renewal form was consistent with the information that the RCMP had received in May 2013 (summarized above). As a result of this new development, the RCMP now had two addresses for Pogachar in two different Central American countries. I was not advised whether these two countries had different or similar extradition arrangements with Canada. I was also not advised as to the nature of the extradition arrangements;
The RCMP in Ontario received the above information on February 17, 2014. In the next days, they applied to Interpol in Ottawa for a Red Notice and applied for a Canada-wide arrest warrant. McMahon J. granted the arrest warrant on February 26, 2014 on the basis of an RCMP Affidavit that summarized the alleged offences and the above information concerning Pogachar’s whereabouts, including the affiant’s belief that Pogachar was “currently living in Panama.” Two weeks later, on March 12, 2014, Interpol issued a Red Notice permitting Pogachar’s arrest abroad with a view to extradition proceedings;
The RCMP had various phone numbers and email addresses associated with Pogachar, including the phone number that he recently provided in Panama, when applying for renewal of his Canadian passport. The RCMP phoned that number on February 27, 2014, the day after McMahon J. had granted an arrest warrant. A person acknowledging that he was Pogachar spoke to the RCMP officer who placed the call. He was advised of the four criminal charges that had been laid in Ontario and that an arrest warrant had been granted. He replied “okay” and stated that “I should be speaking to a lawyer before continuing to talk to you folks.” The RCMP officer began to advise Pogachar of his s. 10(b) Charter rights, at which point Pogachar ended the phone call. The next day, February 28, 2014, the RCMP received a call from a lawyer who stated that he was acting on behalf of Pogachar. The police advised the lawyer of the criminal charges and the arrest warrant and that the RCMP was in the process of bringing Pogachar back to Canada to face the charges. The lawyer advised that he would call back, if he had instructions. A month later, on March 26, 2014, the RCMP followed up and contacted the lawyer. He advised that, “technically, I don’t represent either Mr. Pogachar or Ms. Lombardi” and that, in any event, he did not have instructions to advise the RCMP of their plans. Further efforts were made to reach Pogachar at the various phone numbers and email addresses that the RCMP had, but these efforts were all unsuccessful;
The RCMP investigators and the Crown Law Office lawyers continued to work on the extradition package of materials during the spring of 2014. On July 30, 2014, these materials were completed and were submitted to the IAG at the Department of Justice in Ottawa. They were translated into Spanish in August 2014 and were sent to the Panamanian authorities. There was some delay at this point as Panama sent Canada’s request back in September 2014, requiring that it be submitted first to Panama’s Ottawa Embassy. On November 14, 2014, Canada formally submitted the request to Panama for Pogachar’s extradition and provisional arrest, by way of diplomatic note. One week later, on November 21, 2014, the Panamanian Foreign Ministry transmitted the request to the Attorney General’s office, and that office approved Pogachar’s arrest that same day. As a result, Pogachar became arrestable in Panama almost exactly 14 months after he had been charged in Ontario;
It took three and a half years, from November 14, 2014 until May 5, 2018, before Pogachar was arrested by the Panamanian authorities. There were a number of developments during this period. The RCMP had to work through Interpol Panama, in order to effect Pogachar’s arrest. On February 9, 2015, less than two months after the Panamanian Attorney General had approved Pogachar’s arrest, the IAG in Ottawa asked for an update, inquiring as to “what is holding up the process”. The RCMP made inquiries with Interpol Panama and were advised as follows: there was “no indication that Pogachar has left Panama”; the “addresses that were provided to locate him were false addresses”; there was a “look-out advisory at the border and airport for him”; and that Interpol Panama was “actively looking for him”. In June 2015, the RCMP learned that Pogachar’s father had wired money to a company in Panama City. This information was passed on to Interpol Panama who advised that they were looking into it. In September 2015, the RCMP received information from a U.S. lawyer that Pogachar was living in Bocas Del Toro (the remote region in northern Panama where Pogachar was eventually arrested). The RCMP passed this information on to Interpol Panama. In October and November 2015, the RCMP received information concerning two individuals who may have been in contact with Pogachar in Panama. Both of these tips were passed on to Interpol Panama. On January 15, 2016, the RCMP met with Interpol Panama and were advised that “all checks in 2015 were negative”. The RCMP made a further inquiry on January 18, 2016, asking specifically about “checks for the applicant in Bocas Del Toro”. Interpol Panama advised that “the physical checks for the applicant in 2015 were negative” and that Interpol Panama was now “working different angles”. The RCMP had four further meetings with Interpol Panama during 2016 and were told that there was “nothing new” to report;
One further development in 2016 was that Pogachar’s co-accused and former wife, Ms. Lombardi, contacted the RCMP on July 8, 2016 and arranged her surrender and return to Canada. She advised the police that she had not seen Pogachar since he left the Bahamas in May 2010. She believed that he was no longer in Panama and was living somewhere in South America. She pleaded guilty upon her return to Canada and was sentenced to four years in jail on November 17, 2016;
After inquiries with Interpol Panama in 2017, the RCMP were advised that there was “nothing new”;
The final breakthrough in the Panamanian efforts to find and arrest Pogachar occurred on May 5, 2018. It was the result of an Immigration Panama operation, in conjunction with the U.S. Department of Homeland Security, seeking to deport illegal aliens in the Bocas del Toro region. Over 200 persons, including Pogachar, were arrested in what was described as a “remote region”. Pogachar was described as having “false identification”, including a “forged passport”. He was identified “based on photographs available to officers”. Fingerprints were taken, sent to Interpol for comparison, and the initial photo identification was confirmed. Pogachar was then transported from Bocas del Toro to Panama City for extradition proceedings. On May 17, 2018, Panama issued an extradition order, after Pogachar consented to extradition. He remained in custody in Panama. An emergency travel document had to be obtained for him because he did not have a valid passport. On June 22, 2018, one and a half months after his arrest, Pogachar was sent to Canada.
[19] Pogachar did not testify or call any witnesses on the s. 11(b) Charter Motion. As a result, the documentary record filed by the parties stands unchallenged. In my view, the rational inference that emerges from the above chronology of events, considered together in their totality, is that Pogachar had gone into hiding in order to evade arrest by the authorities. It is unclear when Pogachar first learned of the RCMP criminal investigation arising from the earlier OSC and civil proceedings. However, the documentary record establishes that he provided a false address in Panama City to Canadian passport officials on February 13, 2014, he learned of the criminal charges and arrest warrant on February 27, 2014, he declined to retain and instruct his lawyer in March 2014 concerning any voluntary return to Canada, he moved to the remote northern region of Bocas Del Toro at some point, he obtained “false identification” and a “forged passport” at some point, and he succeeded in avoiding arrest for a number of years in spite of efforts by Interpol Panama to find him.
[20] In addition, I am satisfied that the Crown and the police took “reasonable steps” to find and arrest Pogachar in a timely way. The approximately 10-month period that it took to prepare the package of materials required by the IAG, in order to approve the request to Panama for extradition and provisional arrest, might appear to be slow. However, this package of materials was not filed on the s. 11(b) Motion and I cannot directly assess its size or complexity. Extradition law is inherently complex, there were four separate charges and two separate accused, both extradition and provisional arrest were being sought, new information as to Pogachar’s whereabouts emerged while the package was being prepared (potentially locating him in two different Central American countries), efforts were being made to reach him through his lawyer, I was not informed as to Canada’s extradition arrangements with Panama (or Guatemala), and the investigative material was large and complex (involving the tracing of monies through multiple corporate entities in multiple jurisdictions). In all these circumstances, and given the duties of candour and completeness on ex parte applications, I am not prepared to say that the approximately 10 months that it took to prepare this package of materials was unreasonable.
[21] The one other area of possible concern is that the IAG, the RCMP, and Interpol Panama all appear to have been active and engaged during 2015 and 2016, following up on a number of tips concerning Pogachar’s whereabouts. However, the materials filed in the record before me are relatively silent as to any efforts made to find and arrest Pogachar during 2017. This may simply be a function of the fact that the tips the RCMP had received in 2015 eventually dried up, coinciding with a time when Pogachar had managed to successfully go into hiding. There is some suggestion in the record that Interpol Panama may have been “understaffed and overworked”, although they indicated that they “would gladly assist if there was new information.” In this regard, Laskin J.A. and Charron J.A. (as she then was) stated the following on behalf of the Court of Appeal in R. v. White, supra at p. 240.
As the RCMP had no authority to conduct its own investigation in the United States, it asked U.S. agencies for help. The RCMP asked the U.S. Immigration and Naturalization Service, and later the FBI, to find White. In late 1987 and early 1988 these two agencies advised the RCMP that their inquiries had not revealed White's whereabouts. But in June or July 1988 the RCMP received informal information from the FBI that White might be living at an address in California. The RCMP asked the FBI to provide a formal response and on March 29, 1989, the FBI provided the RCMP with White's address. The length of time taken by these U.S. agencies to notify the RCMP of White's whereabouts cannot be held against the Crown. We note that in R. v. Terry (1996), 1996 199 (SCC), 106 C.C.C. (3d) 508 (S.C.C.) at 516, McLachlin J. wrote:
Still less can the Charter govern the conduct of foreign police co-operating with Canadian police on an informal basis. The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state's sovereignty within its territory, where its law alone governs the process of enforcement. The gathering of evidence by these foreign officers or agency is subject to the rules of that country and none other. Consequently, any co-operative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken [citation omitted].
We are satisfied, therefore, that the two-year delay between March 1987 and March 1989 must be attributed to White [Emphasis added].
[22] Given the RCMP’s necessary dependence on Interpol Panama, the apparent lack of any new tips during 2017 as to Pogachar’s whereabouts, and the active steps that he took to hide in a remote region while using false identification, I cannot say that there was any failure of diligence by the authorities during these later stages of their ongoing efforts to find and arrest Pogachar. They were undoubtedly active and engaged during 2015 and 2016 and they eventually found him in 2018 in circumstances that infer that he was in hiding.
[23] In all the above circumstances, the entire four year and nine month period (from September 17, 2013 until June 22, 2018) should be characterized as “defence delay” for purposes of s. 11(b) analysis under the Jordan framework. I appreciate that the Court in Jordan suggested that the time reasonably required to extradite an accused could be characterized as a “discrete exceptional circumstance” (see para. 10 above). However, the Court did not appear to be referring to a case like the present one where the need to extradite the accused was foreseen and where the accused was actively hiding and evading arrest. The fact that time would be needed to extradite Pogachar was, therefore, not “unforeseen” and it is awkward, at best, to describe his successful efforts to hide and evade arrest as “unavoidable.” In my view, where the accused’s own active and deliberate conduct in hiding and evading arrest is the direct cause of extradition delay, it is not “unavoidable” and it should be characterized as “defence delay”. In other cases, where the accused’s whereabouts are known or are discovered quickly, and where it is the inherent complexity of the extradition process that causes delay, it will be more appropriate to characterize this kind of delay as a “discrete exceptional circumstance”. In any event, it makes no difference to the s. 11(b) result whether this four year and nine month period is characterized as a “discrete exceptional circumstance” or as “defence delay”. In either case, it must be deducted from the total delay of eight years and three months. See, e.g. R. v. Prince, 2018 ONSC 3033.
C. ANALYSIS: THE FURTHER DELAY IN THE CANADIAN COURTS
[24] The post-extradition delay extends from June 23, 2018 to December 17, 2021, a period of just under 42 months. In my view, there are five periods of delay that occurred at this stage of the proceedings that should be characterized as “defence delay” (in three cases) and as a “discrete exceptional circumstance” (in two cases). Each of these five periods of delay raise their own particular factual and legal issues, as set out below.
[25] Pogachar’s first appearance in the Ontario Court of Justice was on June 23, 2018, the day after his extradition. He had arranged for experienced defence counsel, Ms. Thomas, to appear. She was not yet formally or fully retained but she assisted Pogachar by obtaining a substantial amount of disclosure, appearing in court, and advising her prospective client. There was no application for bail and Ms. Thomas requested a series of adjournments while Pogachar applied for Legal Aid and then appealed the refusal of Legal Aid. There were eight of these repeated requests by the defence for adjournments during Pogachar’s unsuccessful Legal Aid application and appeal process. The delay occasioned by these eight adjournments was from June 23, 2018 to October 23, 2018, that is, a period of four months.
[26] Ms. Lai, on behalf of the Crown, does not seek to characterize all or most of this initial four-month period as “defence delay”, even though the defence repeatedly requested these adjournments. I generally agree with the Crown’s position, in this regard. This initial period is not “defence delay”, in the Jordan and Cody sense, because Pogachar was engaged in two important and traditional “intake” activities, namely, obtaining initial Crown disclosure and attempting to complete a full and formal retainer with Ms. Thomas. It was legitimate delay that is included in the 30-month Jordan presumptive ceiling. Having said that, four months was a reasonable and sufficient amount of time to delay proceedings for these “intake” purposes.
[27] The Crown had asked on September 25, 2018 that the case be adjourned to a court where a judge was presiding, so that an open court JPT could be held (with a self-represented accused like Pogachar) and so that some progress could be made. The Crown was clearly concerned about the accumulating delay, all or most of which would likely be included in the 30-month Jordan presumptive ceiling. As a result of the above commendable proactive steps taken by the Crown on September 25, 2018, the case was before Chapin J. on October 16, 2018 and it was scheduled for a JPT in open court. A volume of JPT materials had been provided to Ms. Thomas and to Chapin J. by the Crown, and a copy was provided to Pogachar in open court. Ms. Thomas was in another court and did not appear but she sent her articling student who advised that Pogachar “should be” prepared for the JPT that day. By this point, Pogachar’s initial appeal from the refusal of Legal Aid had been dismissed. He had filed a further appeal and requested a further three-week adjournment to await the results of this final appeal. Chapin J. denied the requested three-week adjournment, stating that “the Court has to be concerned about delay”. She obtained a date when Ms. Thomas would be available to assist with the in-court JPT and adjourned the matter for one week, to October 23, 2018, and stated: “that is going to be an in-court judicial pre-trial until Mr. Pogachar is officially represented … I would like to get this matter moving along.”
[28] I agree with Chapin J., that the case should have proceeded to an in-court JPT on October 23, 2018. Any further requests for delay beyond that point were unreasonable and “illegitimate”, as that term is explained in R v. Cody (2017), 2017 SCC 31, 349 C.C.C. (3d) 488 at paras. 28-35 (S.C.C.). The further delays should be deducted from the 30-month Jordan presumptive ceiling as “defence delay”. On October 23, 2018, Pogachar requested a further three-week adjournment. Brownstone J. was prepared to proceed with the in-court JPT and asked Pogachar, “do you want us to do a trial estimate to at least get you a trial date?” Pogachar replied, “No … I would like to put off any judicial pre-trial until I have active counsel to help me.” Brownstone J. explained the disadvantages of delay to Pogachar but when he insisted on further adjourning the JPT, Brownstone J. stated, “This is at your request” and granted the adjournment. On the next appearance, November 13, 2018, a third judge in the Ontario Court of Justice (North J.) was again ready to proceed with the in-court JPT. Pogachar’s final Legal Aid appeal had now been denied. However, Pogachar was now being assisted by new counsel, Mr. Zeeh. Arrangements were being made to transfer the Crown disclosure from Ms. Thomas to Mr. Zeeh. In these circumstances, Mr. Zeeh had sent an agent to appear and request a further three-week adjournment. Mr. Zeeh needed time to review the disclosure and he had instructions to file a Rowbotham Application in the Superior Court of Justice. North J. asked Pogachar whether it is “your request that the matter be adjourned today and that you not have a judicial pre-trial” and Pogachar replied “Yes.” On the next appearance, December 5, 2018, Mr. Zeeh had advised the Crown that he was not yet retained but that a date could, nevertheless, be set for a JPT in the Ontario Court of Justice, while he proceeded with the Rowbotham Application in the Superior Court of Justice. As a result, a new JPT date was scheduled for January 2, 2019. On that date, the JPT was finally held before North J., with counsel not yet fully or formally retained but acting in a limited capacity, and a date was set for an eight-day preliminary inquiry on August 7 to 16, 2019.
[29] In my view, the approximately two and a half month delay from October 23, 2018 (when Chapin J. had ordered that the JPT was to proceed) until January 2, 2019 (when the JPT finally did proceed) was “defence delay”, for two separate reasons. First, the Crown and the Court were ready to proceed with the in-court JPT on October 23, 2018 and the accused unreasonably insisted on delaying it. Second, the accused changed counsel and the “intake” processes of obtaining and reviewing disclosure and advising the accused had to be repeated. See: R. v. Mallozzi (2018), 2018 ONCA 312, 407 C.R.R. (2d) 266 (Ont. C.A.); R. v. Browne, 2020 ONSC 5244 at paras. 50-62; R. v. Saeed, 2021 ONSC 5084 at paras. 9-10; R. v. Cody, supra at paras. 30 and 40.
[30] The Rowbotham Application was heard in this Court on February 25, 2019 and was dismissed. The preliminary inquiry was waived by Pogachar on August 7, 2019 and he was committed for trial. The total post-extradition delay for s. 11(b) Jordan purposes, at this point, was 13 ½ months. When the two and one half months of “defence delay” is deducted, for the reasons set out above, the net delay in the Ontario Court of Justice was 11 months. This is well below the 18-month Jordan presumptive ceiling for delay in the Ontario Court of Justice.
[31] The second period of “defence delay” occurred in the Superior Court of Justice. Most of this second period of delay was conceded to be “defence delay” in the Factum filed on the s. 11(b) Motion by counsel for Pogachar. However, that position changed during oral argument. In my view, counsel’s change in position was not warranted. The first appearance in Superior Court was on August 29, 2019. Pogachar now had a third counsel assisting him, from present counsel Ms. Webb’s office. Counsel stated on the record that they were “not retained at this juncture” and that a new Rowbotham Application was being prepared. Counsel clarified on a subsequent appearance that they were, in fact, retained but their retainer was limited to the Rowbotham Application. The Crown stated on the first appearance that they were “ready to proceed today, set a JPT today.” What ensued were three adjournments in Practice Court, all requested by the defence, until the Rowbotham Application was eventually resolved in Pogachar’s favour. It was then formally abandoned on December 9, 2019. Counsel stated that they were now fully retained for trial and were ready to set a date for the JPT. This delay in setting a date for the JPT extended for over three months, from August 29 to December 9, 2019. It was repeatedly requested by the defence at a time when the Crown and the Court were ready to proceed with scheduling a JPT. Its stated purpose was to allow the accused’s Rowbotham Application to proceed in advance of the JPT and in advance of setting any trial date.
[32] The normal and better practise, and the practice that accords with the post-Jordan and post-Cody culture of expedition, would have been for counsel to set a date for the JPT on August 29, 2019, proceed to set a date for trial after the JPT “with or without counsel”, and proceed with preparing and scheduling the Rowbotham Application at the same time. This is what Mr. Zeeh had done when he was acting for Pogachar in the Ontario Court of Justice, as summarized above (at para. 28). In my view, it is not reasonable or “legitimate” in the post-Jordan and post-Cody era, to repeatedly delay the JPT process in the Superior Court in order to bring a Rowbotham Application, and to assume that the 30-month Jordan clock will continue to run during this period of delay. These processes can proceed in parallel and they often do proceed in parallel, because counsel on a limited retainer (like Mr. Zeeh in the Ontario Court and Ms. Webb in the Superior Court) can play a limited role at the JPT, set a trial date “with or without counsel”, and prepare interlocutory proceedings like a Rowbotham Application at the same time. Long before Jordan was decided, the Courts had made it clear that the JPT process should not be delayed while counsel wait for every last piece of Crown disclosure. What happened in the present case in the Superior Court is analogous to what was criticized and prohibited in this earlier line of authority. See: R. v. Lahiry et al, supra at paras. 106-115, where the leading authorities on this point are summarized. If circumstances change, after a successful or unsuccessful Rowbotham Application, there is no difficulty in arranging a second or third JPT in the period leading up to the scheduled trial date. Indeed, this is what happened in the present case as there have been two further JPTs before MacDonnell J., after the trial date was set. In conclusion, this period of over three months delay should be deducted from the total delay as it is properly characterized as “defence delay”. See: R. v. Cody, supra at paras. 28-35 where the unanimous Court stressed that defence conduct which “exhibits inefficiency or marked indifference towards delay” can be characterized as “illegitimate”.
[33] The third period of delay that should be deducted is short and straightforward. When the JPT was finally ready to proceed on January 31, 2020, defence counsel had sent her Form 17 to the Crown and the Court by electronic means on the preceding day. The Crown received it but the Court did not receive it, apparently due to some failure of technology or administration. As a result, the JPT was adjourned for one week to February 6, 2020. In my view, this delay due to an unforeseen administrative or technological error should be characterized as a “discrete exceptional circumstance”. Accordingly, it should be deducted from the total delay. See: R. v. J.K. (2021), 2021 ONCA 256, 155 O.R. (3d) 427 at para. 68 (C.A.).
[34] The fourth and fifth periods of delay that should be deducted from the total delay are the longest and most significant. They are also interrelated and can be analysed together. After the JPT before MacDonnell J. on February 6, 2020, a four-week jury trial was scheduled for November 16, 2020. Pogachar was still in custody and had not applied for bail when the trial date was set. Two further JPTs were held before MacDonnell J., on September 9, 2020 and October 13, 2020, in order to discuss whether there were any prospects of re-election and whether a jury trial could proceed during the pandemic. At the time when the trial date was set on February 6, 2020, the Covid-19 pandemic had not yet caused the courts in Ontario to shut down for a period of time but by the fall of 2020 the pandemic was well underway and the impact on the courts, especially on jury trials like this case, had been profound. At the further JPT on October 13, 2020, Pogachar was now on bail and defence counsel advised that they would be applying to adjourn the trial. The adjournment application was brought in Practice Court before Campbell J. Counsel stated that a defence expert had been retained to review the Crown’s accounting analysis and the expert “informed us that he is not going to be ready for the beginning of trial … he needs an additional four months to review the record.” There was also uncertainty as to whether any jury trials would be proceeding on November 16, 2020, due to the pandemic, but counsel stated “primarily, we will not be ready for trial because of the expert issues … [Pogachar] understands that this is a defence delay. I have explained to him how the Jordan ceiling of 30 months works … four is added to the 30 months … it is delay indeed caused by the defence.” The adjournment was granted by Campbell J.
[35] On October 27, 2020, a new date was set for a four-week jury trial, starting on November 22, 2021. Defence counsel sent an email to the Crown advising that she was available for trial on certain dates in February, March, and April 2021. However, I note that none of these dates appear to be for the four consecutive weeks that would be required for a jury trial. It appears from the email that counsel’s earliest availability for a four-week jury trial was starting on May 19, 2021. In these circumstances, the period of delay caused by the defence adjournment of the trial is, at a minimum, from November 16, 2020 to May 19, 2021, that is, a period of six months.
[36] The main dispute between the parties is whether the further six months of delay, until the new trial date on November 22, 2021, should be attributed to the pandemic. Ms. Webb concedes, on behalf of Pogachar, that the pandemic is a “discrete exceptional circumstance”, that jury trials have not been proceeding in Toronto for at least the past approximately eight months, that the first two jury trials to proceed this year in Toronto were in July 2021 (a murder and a sexual assault), and that it is anticipated that an unknown number of further jury trials will proceed at the Toronto Court House in September 2021. Ms. Webb submits that little or none of the 12 months delay, from the first trial date in November 2020 to the new trial date in November 2021, can be attributed to the pandemic because Pogachar’s case should have been accorded greater priority, given that the charges were particularly dated, having been laid in September 2013. At a minimum, Ms. Webb submits that the new trial date should have been scheduled on her earliest available dates or shortly afterwards.
[37] I have previously set out a s. 11(b) Charter analysis of the Covid-19 pandemic, holding that it is a “discrete exceptional circumstance”, in R. v. Obregon-Castro, 2021 ONSC 1096. I adopt that analysis for purposes of these Reasons. I have also previously set out a s. 11(b) analysis of the impact of the pandemic on court house facilities in Ontario, on the backlog of pandemic era cases now awaiting trial, and on the need to prioritize those cases, in R. v. Saeed, supra. I adopt that analysis for purposes of these Reasons. In my view, it was entirely reasonable to reschedule the present trial for November 22, 2021 in the circumstances related to the pandemic, as analysed in Obregon-Castro and Saeed. In particular, I rely on the following six considerations:
When the new trial date was set on October 27, 2020, it could not be predicted with any precision as to when the pandemic would end, when the Court House would be sufficiently reconfigured to permit multiple jury trials at the same time, and how many such jury trials could proceed at the same time. In other words, the scheduling of post-pandemic jury trials in Toronto during the past year has involved many complex and difficult challenges for even the most able trial managers. No one was able to predict, or did predict, that the first jury trials would be permitted in July 2021 and that an unknown number of further jury trials would be attempted in September 2021;
No mention whatsoever was made by counsel for Pogachar of any s. 11(b) Charter concerns, either when the new trial date was set or at the JPTs before MacDonnell J.;
Had the new trial date been scheduled for the period of Ms. Webb’s earliest realistic availability, in May or June 2021, it would not have proceeded because it turned out that jury trials were still not proceeding in Toronto, once those earlier dates arrived;
Pogachar had been released on bail, with the consent of the Crown, on June 9, 2020 and his terms of bail had been loosened on October 7, 2020, with the consent of the Crown. As a result, when the new trial date was set, Pogachar was out of custody and the impact of delay on his s. 11(b) liberty interests had been significantly mitigated;
The case against Pogachar is almost exclusively based on documentary evidence. It depends on the written “offering memorandum” to the investors (setting out the terms on which their money was advanced) and the forensic accounting and tracing analysis (indicating where the money went). In this kind of case, the impact of delay on s. 11(b) fair trial interests is not significant;
Finally, there are a large number of serious crimes of violence awaiting trial in the pandemic backlog in this Court, including cases where the accused are in custody. Amongst these cases, there are a number of murder trials that have already been adjourned once or twice. In my view, it is appropriate to give these cases some degree of priority.
[38] In all these circumstances, the final 12-month period of delay from November 16, 2020 to November 22, 2021, should be allocated as follows: the first six months were caused by the adjournment requested by the defence and are properly characterized as “defence delay”; the second six months were caused by the Covid-19 pandemic “discrete event” and the Court and the Crown took reasonable steps in the particular circumstances of this case to mitigate the delay. In the result, the entire 12-month period should be deducted from the total delay.
D. CONCLUSION
[39] The total delay in this case is eight years and three months. The initial period of pre-extradition delay is four years and nine months and it should be deducted as “defence delay.” The remaining post-extradition period of delay before the courts in Canada includes five periods of delay that should be deducted, as follows: approximately two and one half months of “defence delay” in the Ontario Court of Justice when the JPT was unreasonably delayed and when Pogachar changed counsel; approximately three and one half months of “defence delay” and “discrete event” delay, on two occasions in the Superior Court, when both scheduling and holding the JPT was delayed; and 12 months of both “defence delay” and “discrete event” delay when the first trial date was adjourned by the defence in the midst of the Covid-19 pandemic.
[40] In the result, approximately six years and three months of “defence delay” and “discrete event” delay has accumulated in this case. When it is deducted from the total delay, the resulting net delay is two years, or 24 months, which is below the 30-month Jordan presumptive ceiling. There is no suggestion that delay below the presumptive ceiling violates s. 11(b) of the Charter in this case. Accordingly, I dismissed Pogachar’s Motion seeking a stay of proceedings at the end of oral argument, with these written Reasons to follow.
[41] I would like to thank counsel for their thorough materials and their helpful submissions.
M.A. Code J.
Released: August 31, 2021
COURT FILE NO.: CR-19-00000530-0000 DATE: 2021-08-31
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LADDY JEFFERY POGACHAR
REASONS FOR JUDGeMENT on sECTION 11(b) motion
M.A. Code J.
Released: August 31, 2021