



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Witen, 2014 ONCA 694

DATE: 201401009

DOCKET: C55620

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Witen

Appellant

James Lockyer and Richard Posner, for the appellant

Ivan S. Bloom, Q.C., Lisa Csele and Sabrina Montefiore,
    for the respondent

Heard: September 22, 2014

On appeal from the convictions entered on August 29, 2011
    and the sentence imposed on June 27, 2012 by Justice Peter B. Hambly of the
    Superior Court of Justice.

ENDORSEMENT

[1]

The appellant, a tax preparer, was convicted of two counts of fraud.  Each
    count alleged that the appellant helped clients make false expense claims in
    their tax returns.  The frauds cost the public purse in excess of $1,000,000. 
    The appellant received a jail sentence of three years and a fine of $448,000. 
    He appeals his conviction and sentence.

[2]

At trial, the appellant unsuccessfully moved for a stay, claiming that
    his right to a trial within a reasonable time as guaranteed by s. 11(b) of the
Charter
had been infringed.  He then sought to exclude certain documents from evidence
    under s. 24(2) of the
Charter
,
claiming that the authorities had seized the documents from his office and home
    in violation of his rights under s. 8 of the
Charter
.  The trial judge
    dismissed the motions.

[3]

The trial proceeded on the Crowns unchallenged statement of facts.  The
    facts fully justify the convictions.

[4]

On appeal, the appellant renews his s. 11(b) and s. 8 arguments.  He
    also submits that the trial judge should have imposed a conditional sentence. 
    We would not give effect to any of these arguments.

The Section 11(b) Claim

[5]

The trial proceedings in this matter have a long and protracted
    history.  For the purposes of the appeal, we will assume that counsel for both
    the appellant and the Crown are correct in identifying the relevant s. 11(b) period
    as between November 2005 (when the first charges were laid) and late March 2011
    (the anticipated start of the second trial).  On its face, 65 months is an
    excessive length of time to bring a case to trial and calls for a rigorous s.
    11(b) analysis.

[6]

We do not propose to review each of the court appearances and examine
    each of the periods addressed by the trial judge.  Nor is there any need to restate
    well-settled law.  We will focus on the periods the appellant emphasized in his
    submissions.

November 5, 2005 to June 20, 2007

[7]

The appellant was initially charged with offences under the
Income
    Tax Act
.  Those charges arose out of tax returns the appellant prepared
    for two individuals and their company, Cantec Manufacturing Inc.  In June 2007,
    the Crown withdrew the income tax charges and charged the appellant with five
    counts of fraud. The appellant was eventually convicted of two of those counts. 
    The first charge was an expanded version of the income tax charges and involved
    many of the appellants clients.  The second charge, referred to as the false
    childcare expenses charge, was factually distinct from the income tax charges.

[8]

The appellant argues that the trial judge should have counted nearly the
    entire November 5, 2005 to June 20, 2007 period (19.5 months) against the Crown
    in his s. 11(b) analysis.  Counsel submits that the Crown had no intention of
    proceeding against the appellant on the
Income Tax Act
charges but
    laid those charges only to hold the appellant pending the completion of its
    investigation and the laying of the fraud charges.

[9]

The evidence offers no support for this submission.  The few references
    in the transcript on which the appellant relies do no more than indicate that,
    when the initial
Income Tax Act
charges were laid, a very broad
    investigation into the appellants conduct of his tax-related business was
    underway.  To jump from a finding that the authorities continued to investigate
    the appellant to the conclusion that the Crown never intended to prosecute the
    initial charges is rank speculation.

[10]

Like
    the trial judge, we would assign most, if not all, of the 19 months to the
    cases inherent time requirements, the defences conduct, and mutual requests
    for adjournments to pursue resolution discussions.  We find no support for the
    appellants contention that the Crowns conflict of interest motion with
    respect to counsel for his co-accused somehow delayed the appellants case. 
    There is no reason to think that the case would have made any faster progress
    had the Crown abandoned its ultimately needless conflict of interest motion.  We
    note that the appellants first counsel removed himself from the record around
    April 2006 and new counsel did not formally appear on the record until August
    2006.  In August, new counsel indicated he needed time to review the disclosures
    which consisted of approximately 20,000 documents.  No trial dates were going
    to be set until counsel had the opportunity to review the disclosure whether or
    not the Crown proceeded with its conflict of interest motion.

June 20, 2007 to July 28, 2008

[11]

The
    trial judge attributed four and a half months of this 13 month period to the
    Crown.  The appellant submits that the trial judge should have attributed eight
    and a half months of the delay to the Crown.  The appellant contends that given
    the prior charges under the
Income Tax Act
and the lengthy investigation
    undertaken by the authorities, it should not have taken the Crown more than a
    very short time to make whatever disclosure the new charges required.

[12]

We
    begin with the observation that an allocation of an additional four months to
    the Crown would not affect the ultimate resolution of the s. 11(b) claim.  In
    any event, we do not agree with the appellants characterization of the new
    charges impact on the Crowns disclosure obligations.  The new charges greatly
    expanded the material to be disclosed.  The investigation also triggered
    certain third party reassessments, leading to third party production of
    documents that were, in some cases, disclosable.  This process necessarily took
    some time. The four months allowed by the trial judge for the inherent time
    requirements of the case were well within the appropriate range.

[13]

In a related submission, the appellant argues that the trial judge
    wrongly found that the defence waived four months of this period.  The
    appellant submits that the waiver extended to only one month.  Crown counsel
    accepts this interpretation but argues that some of the remaining three months
    should fall under the inherent time requirements because of the added
    disclosure obligations.  We agree.  In any event, a three month adjustment in
    the s. 11(b) arithmetic would have no effect on the outcome.

March 23, 2009 to March 28, 2011

[14]

The
    appellant was committed for trial in March 2009 and first appeared in the
    Superior Court on April 24, 2009.  His second trial was to begin in March
    2011.  This two year period was not a focus of the appellants s. 11(b)
    submissions.  We refer to it because it is both a significant amount of the
    overall period and is explained by an unusual and unfortunate event.

[15]

The
    appellants trial began in Superior Court on October 13, 2009 with pre-trial
    motions and proceeded intermittently through conviction toward sentencing until
    September 7, 2010.  On that day, the senior regional judge declared a mistrial
    on account of the trial judges illness.  He also determined that a new trial,
    rather than the appointment of another judge, would best serve the interests of
    justice.  No one takes issue with that ruling and everyone accepts that the
    period lost on account of the trial judges illness and the need to effectively
    re-do the trial must be neutral in the s. 11(b) analysis.  There is some
    dispute as to the calculation of that period.  We think it runs from the start
    of motions in the first trial on October 13, 2009 to the declaration of
    mistrial on September 7, 2010, about 13 months later.

Prejudice

[16]

The appellant led evidence that his wife suffers from Parkinsons
    disease and that in the years during which these matters were before the
    courts, she relied more and more on the appellant to assist her in day-to-day
    living.  Mrs. Witen filed an affidavit outlining the impact of the delay on her
    and the appellant.

[17]

The trial judge rejected the claim that the impact of the delay on the
    appellants family life and his and his wifes ability to cope with her worsening
    disability could constitute prejudice.  This seems a somewhat narrow view of
    the concept of prejudice.  Coping with serious health problems, like
    Parkinsons, is difficult in any circumstance.  One could accept that the
    difficulty is exacerbated when serious criminal charges hang over the head of
    the able-bodied person in the relationship for a prolonged period.  That said,
    the prejudice obviously ranks below interference with an individuals liberty
    or the right to a fair trial.  Even accepting some prejudice from the delays
    impact on family well-being, that prejudice does not alter the s. 11(b) result.

The Section 8 Claim

[18]

The
    authorities executed two sets of search warrants, the first in February 2004
    and the second in February 2006.  In both cases, the appellants home and
    office were searched.

[19]

As
    we understand the appellants position, he challenges the constitutionality of
    the 2004 search.  He submits that while the search warrants were properly
    issued, the authorities seized documents that were neither within the
    description of the documents to be seized under the warrant nor subject to
    seizure under the expanded seizure powers in s. 489 of the
Criminal Code
. 
    The appellant does not directly attack the constitutionality of the 2006
    seizures but does argue that the close connection between the 2006 seizures and
    the unconstitutionally obtained documents in the 2004 seizures renders the
    product of the 2006 seizure inadmissible under s. 24(2) of the
Charter
.

[20]

The
    court did not require Crown submissions on the seizure-related issues.  We will
    address the appellants arguments only briefly.

[21]

The
    trial judge ultimately concluded that the documents seized from the appellants
    home and office fell within the warrants description of the documents to be
    seized.  He also determined that where a book (for example, a deposit book)
    contained both documents described in the warrant and documents not described
    in the warrant, the authorities were entitled to seize the entire book.

[22]

By
    way of alternative finding, the trial judge went on to conclude that even if
    the challenged documents did not fall within the language in the warrant, they
    were seizable under s. 489(1)(c) of the
Criminal Code
.  That provision
    allows a person executing a warrant to seize any thing that the person
    believes on reasonable grounds will afford evidence in respect of an offence
    against this or any other Act of Parliament.  He did, however, find that the
    so-called plain view doctrine could not justify the seizures.

[23]

Section
    489(1)(c) speaks to any offence and is not limited to the offences for which
    the warrant was granted.  It requires belief on reasonable grounds that the
    seized material will afford evidence in respect of an offence.  We do not
    read the trial judges reference to potential relevance as setting some lower
    standard.  The trial record provided ample basis to conclude that the person
    seizing the material believed on reasonable grounds that the seized documents
    would afford evidence of a criminal fraud.

[24]

As we are satisfied that the material was properly seized under s.
    489(1)(c), we need not consider whether it also fell within the language of the
    warrant.  Nor need we address the applicability of the plain view doctrine. 
    Finally, even if some of the documents could be said to fall outside of s.
    489(1)(c)s grant, we see no case for excluding any of the documents under
    s. 24(2) of the
Charter
.  The seized documents were properly
    admitted.

The Sentence Appeal

[25]

The sentence is well within the accepted range of sentence for this kind
    of crime.  This was a serious fraud perpetrated over a lengthy period against
    the public purse by an individual who used his expertise to undermine the
    efficacy of the self-reporting income tax system.  We would not interfere with
    the sentence.

Doherty J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


