



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Majeed, 2019 ONCA 422

DATE: 20190522

DOCKET: C64676

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Majeed

Appellant

Michael Dineen, for the appellant

Jeremy D. Tatum, for the respondent

Heard and released orally: May 16, 2019

On appeal from the conviction
    entered by Justice S. Nakatsuru of the Superior Court of Justice, dated October
    5, 2017, and the sentence imposed on December 15, 2017.

REASONS FOR DECISION

The Conviction Appeal

[1]

There is one ground of appeal. The appellant submits that the trial
    judge erred in holding that the appellant had failed to establish a breach of
    s. 11(b) of the
Charter
,
e
ven
    though this case was before the courts for a significant period of time. We
    disagree with this submission.

[2]

The trial judge correctly and concisely outlined the approach to s.
    11(b) claims mandated by
Jordan
: see
Majeed
, 2017 ONSC 3554.
    In applying the Jordan analysis, the trial judge calculated the net delay at 50
    months, some 20 months above the
Jordan
cap (reasons, para. 13). The
    appellant does not take issue with this calculation.

[3]

The trial judge found that the Crown had established three
    specific events that qualified as exceptional circumstances and which, taken
    together, justified a 10-month delay in the completion of the preliminary
    inquiry. Taking that 10 months in account, the delay for s. 11(b) purposes was
    just under 40 months, still 10 months over the
Jordan
cap.

[4]

The trial judge next
    considered, and accepted, the Crowns submission that the complexity of the
    prosecution constituted an exceptional circumstance. In reaching that
    conclusion, the trial judge considered not only the complexity of the case in
    terms of the number of accused, the number of witnesses, the nature of the
    evidence, and the number of issues, but also took into account the steps taken
    by the prosecution to properly manage that complexity and mitigate any delay
    caused by it (see reasons, paras. 30-47).

[5]

The trial judge accepted
    and relied on the unchallenged affidavit of the lead investigator. He described
    the explanation proffered in the affidavit for the progress of the prosecution
    as detailed and thoughtful: reasons, para. 48. The trial judge ultimately
    concluded:

I find that the Crown made reasonable efforts to manage this
    complex case. While I agree it is the Crown who drives the prosecution, the
    Crown developed and organized a reasonable plan to try and get to the destination,
    the completion of the trial, by the most direct and quickest route possible.
    While there will always be unexpected obstacles to overcome and decisions that
    with reflection the Crown may have wanted to re-visit, the Crowns response to
    the particular complexity of this case while perhaps not perfect was reasonable
    and acceptable within the meaning of a s. 11(b) analysis.

[6]

The trial judge addressed the defence submission that, although the
    prosecution did have a plan to manage the prosecution, that plan came too late
    and was implemented after too much delay (reasons, paras. 50-52). The trial
    judge was concerned by this submission, but ultimately decided that the steps
    taken to address the complexity of the case were sufficiently timely in all of
    the circumstances.

[7]

As is hopefully apparent from the brief summary above, the s. 11(b)
    analysis required in this case demanded extensive fact-finding by the trial
    judge and an appreciation of how the criminal process works, not only in the
    Superior Court but in the Ontario Court of Justice. The trial judge was well
    positioned to do both. We defer to his assessments, absent palpable and
    overriding error. We find none.

[8]

The appellant focuses on two aspects of the s. 11(b)
    analysis. He submits that the trial judge erred in accepting that the delay
    caused by the last-minute replacement of the preliminary inquiry judge who had
    become ill was justified as an exceptional circumstance for the purposes of the
Jordan
analysis.  The appellant
    accepts that some delay was justified in that one could not expect that the
    replacement judge would be available for all 26 days that had been scheduled
    for the preliminary. The appellant submits, however, that the unavailability of
    the replacement judge for 8 of those 26 days went beyond what could be viewed
    as reasonable and resulted in a delay of about four months.

[9]

The trial judge was no
    doubt very familiar with the way matters are scheduled in the Ontario Court of
    Justice. Ontario Court of Justice judges have ongoing matters that are
    scheduled from time-to-time, sometimes well in advance. Neither party saw fit to
    adduce any evidence on the question of whether the replacement judges unavailability
    for 8 out of 26 days should be considered normal, abnormal or something in
    between. The trial judge was left to his own experience and understanding of
    the way the process operates and can reasonably be expected to operate. We
    cannot say he was wrong in failing to parse the delay flowing from the
    replacement of the preliminary inquiry judge in the manner now urged by the
    appellant. We would not give effect to that ground of appeal.

[10]

The appellants second
    argument, that the trial judge was wrong in treating the complexity of the case
    as an exceptional circumstance for the purposes of the
Jordan
analysis, also engages factual considerations. More
    specifically, the appellant argues that while the prosecution was admittedly
    complex and the Crown admittedly took steps to address the management of the
    prosecution, the Crown failed to act quickly enough to prepare and implement a
    litigation plan that would address and mitigate delays flowing from the
    complexity.

[11]

In our view, whether the
    Crown acted quickly and effectively enough was the kind of factual
    determination that lies at the heart of the trial judges fact-finding role. We
    see no reason to interfere with his conclusion in that regard. This ground of
    appeal must also be rejected.

[12]

The trial judge went on
    to consider whether the transitional exceptional circumstance could also
    justify the delay for the purposes of s. 11(b). He held that it could. In light
    of our conclusion that the motion was property dismissed without regard to the
    transitional exceptional circumstance argument, we need not consider that part
    of the trial judges analysis.

[13]

The conviction appeal is
    dismissed.

The Sentence Appeal

[14]

Counsel for the appellant acknowledges, and we think properly so, that
    the sentence imposed was within the range of sentences recognized by this court
    as appropriate for large-scale criminal frauds. Counsel submits, however, that
    the trial judge made a factual error in respect of the timing of certain
    professional accreditations obtained by the appellant. Counsel points out that
    these credentials were obtained after the fraud and that the trial judge erroneously
    found that they were used in the commission of the fraud. The trial judge went
    on to treat this as an aggravating factor.

[15]

It
    would appear that the trial judge made the factual error identified by counsel.
    However, that error was not material to the determination of the ultimate
    sentence. These were serious frauds, ending only with the arrest of the appellant
    and others. The sentence was fit and we would not interfere. Leave to appeal
    sentence is granted and the appeal is dismissed.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


