



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baron, 2017 ONCA 772

DATE: 20171005

DOCKET: C61325

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Paul Baron

Appellant

John Paul Baron, acting in person

Daniel Stein, appearing as duty counsel

Craig Harper, for the respondent

Heard: May 3, 2017

On appeal from the ruling of Justice Bruce G. Thomas of
    the Superior Court of Justice, dated June 4, 2014, with reasons reported at
    2014 ONSC 3300, and from the conviction entered on December 1, 2014 by Justice
    Johanne N. Morissette of the Superior Court of Justice, sitting with a jury,
    and from the sentence imposed on November 13, 2015.

Trotter J.A.
:

A.

overview

[1]

John Paul Baron was convicted of 28 counts of fraud over $5,000,
    contrary to s. 380(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46.
    He was sentenced to six years imprisonment. Mr. Baron appeals his convictions
    and sentence.

[2]

The appellant and his two co-accused  Terrance McGill (McGill) and Leeanne
    Houle (Houle)  were charged in a Ponzi scheme. Investors in the scheme
    advanced $3,418,550 (Cdn.) and $250,000 (U.S). When the scheme inevitably
    collapsed, losses totalled over $2,000,000.

[3]

After the three accused were charged, 59 ½ months passed before the
    trial concluded. In advance of the trial, the accused unsuccessfully applied to
    have the proceedings stayed, based on infringements of s. 11(b) of the
Charter
.
    The appellant challenges this ruling on appeal. He also submits that the trial
    judge erred in the manner in which she instructed the jury.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

trial within a reasonable time

(1)

Introduction

[5]

The appellant was convicted almost three years ago. He relies on the
    new framework for s. 11(b), established in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631, and affirmed in
R. v. Cody
, 2017 SCC 31, 349
    C.C.C. (3d) 488.

[6]

This fraud prosecution was complex, especially in the early stages, when
    thousands of pages of disclosure started to flow, and as counsel started to
    come to grips with the case. Proceedings in the Ontario Court of Justice
    (OCJ) were plagued with delays attributable to the defence. One lawyer (not
    Mr. Stein) initially represented all three accused. Perhaps inevitably, counsel
    was eventually removed from the case. This was the first in a concatenation of
    delays for which the Crown could not be held responsible. The case laboured in
    the OCJ while the accused sought to retain new counsel. Dates for the lengthy
    preliminary inquiry had to be set three times, due to representation issues,
    and because of Houles illness.

[7]

When they arrived in the Superior Court of Justice (SCJ), the three
    accused delayed setting a trial date. A Case Management Judge was appointed to
    take charge and to bring the case to trial expeditiously. He was successful and
    prevented what might have been a longer delay.

(2)

The Application Judges Ruling

(a)

General

[8]

The s. 11(b) application

was argued on May 5 and 6, 2014, in
    anticipation of a jury trial set to commence on November 10, 2014.

[9]

On June 4, 2014, the application judge dismissed the application, applying
    the framework established in
R. v. Morin
, [1992] 1 S.C.R. 771. When
    the application was argued, there had been 45 court appearances in total  approximately
    37 were in the OCJ. The application judge found that no time had been waived by
    any of the accused, nor was any of the delay attributable to the conduct of the
    Crown. He found that the total amount of institutional delay was 18 ½ months  8
    months in the OCJ, and 10 ½ months in the SCJ. Measured against the total delay
    of 59 ½ months, the application judge found that the bulk of the delay was
    neutral time (as classified under
Morin
). He apportioned only about 6
    months to defence delay.

[10]

I
    will not examine each of the 45 appearances identified by the application judge.
    Instead, I focus on the areas that he considered problematic, the issues raised
    by the parties on appeal, and those relevant to the application of
Jordan
.

(b)

Proceedings in the OCJ

[11]

The
    case was in the OCJ for just over three years  December 15, 2009 (when charges
    were laid) until February 21, 2013 (committal for trial).

[12]

As
    noted, one lawyer initially represented all three accused. He remained on the
    record for 15 months, until he was removed on April 13, 2011. In the meantime,
    he dealt with what everyone described as voluminous disclosure. On several occasions,
    the case was adjourned to accommodate defence counsels request for more time
    to review disclosure. As these adjournment requests mounted, the Crown
    expressed concern about moving the case forward. It was not until October 8,
    2010, that defence counsel was prepared to set preliminary inquiry dates for August
    and September of 2011.

[13]

When
    defence counsel was removed on April 13, 2011, the Crown put on the record, and
    the court agreed, that the prosecution and the courts have bent over
    backwards to accommodate the case, and the schedule of defence counsel. Preliminary
    inquiry dates earlier than August and September 2011 were available, but were
    not selected by defence counsel. Unfortunately, the exact amount of time thrown
    away prior to April 13, 2011, was not specified. However, the Crown was
    emphatic that, despite counsel being removed, the preliminary inquiry dates be
    protected while the accused retained new lawyers.

[14]

Following
    numerous subsequent appearances, it became clear on June 21, 2011, that the
    August/September 2011 preliminary inquiry dates could not be protected. Because
    counsel had not been retained, new preliminary inquiry dates were set for
    February 13-17 and 21-24, 2012.

[15]

In
    the meantime, on August 30, 2011, all three accused persons made
Rowbotham

applications.
[1]
The Crown contested the jurisdiction of a judge of the OCJ to grant such
    relief. The presiding judge reserved his decision. On September 13, 2011, prior
    to the release of this decision, McGill and Houle reappeared before the OCJ to
    advise they had received legal aid, but wished to convert their
Rowbotham
applications into a request for
Fisher
orders.
[2]


[16]

On
    September 27, 2011, the presiding judge determined that he lacked jurisdiction
    to grant the relief sought. The case was adjourned to the new preliminary
    inquiry dates in February of 2012. Subsequently, the appellant was unsuccessful
    on his
Rowbotham

application in the SCJ; McGill and Houle were
    unsuccessful in obtaining
Fisher
orders.

[17]

Ultimately,
    the dates set for the second preliminary inquiry in February of 2012 were lost
    because McGill and Houle had still not fully retained counsel  their
    applications for legal aid were still being considered by the Big Case
    Management Team (BCMT) of LAO. When they requested an adjournment, the
    appellant told the court, Who am I to deny them their lawyer? and I don't
    think it makes any consequence to me Your Honour at this point.

[18]

The
    Crown opposed the adjournment. It proposed pushing ahead with the preliminary
    inquiry. The Crown was permitted to call two witnesses from out of town. However,
    only one witness was heard because proceedings were halted when Houle was taken
    ill and rushed to the hospital. The preliminary inquiry was delayed a couple of
    times in response to Houles situation. Ultimately, she could not continue, and
    the second preliminary inquiry dates were lost.

[19]

Various
    appearances occurred in the aftermath of the second aborted preliminary
    inquiry. With the permission of the court, the appellant was not present on a
    number of these dates. On April 24, 2012, even though counsel for McGill and
    Houle were not yet formally on the record, new preliminary inquiry dates were
    set for December 2012. At this time, Houle expressed a desire for earlier
    dates; the appellant raised the issue of delay for the first time.

[20]

The
    preliminary inquiry finally took place on December 7, 10, 12, 13, 17-19 of 2012
    and January 30, 2013. McGill and Houle had counsel; the appellant did not. The
    accused were committed to stand trial on February 21, 2013.

(3)

Proceedings in the SCJ

[21]

The three accused arrived in the SCJ on May 10, 2013. Counsel for
    McGill requested that the case be adjourned until September 13, 2013. It was
    then adjourned to Assignment Court on November 29, 2013. The appellant did not
    object to these delays. In the meantime, a Judicial Pre-Trial Conference
    (JPT) was adjourned because counsel had failed to file a Pre-Trial Conference
    Report (Form 17), as required by the
Criminal Proceedings Rules for the
    Superior Court of Justice (Ontario)

(SI/2012-7), at r. 28.04.


[22]

The new JPT date was scheduled for January of 2014. On the
    November 29 Assignment Court date, counsel for McGill attended on behalf of all
    accused to request that trial dates not be set until the delayed JPT was
    completed.

[23]

Around
    this time, the Chief Justice of the SCJ designated the application judge as a
    Case Management Judge, under s. 551.1 of the
Criminal Code
. On January
    24, 2014, the application judge set a date for the appellants fresh
Rowbotham
application, to be heard on March 13, 2014. He also set May 5 and 6, 2014 as
    dates for the s. 11(b) application. On February 14, 2014, a four-to-five-week
    jury trial was scheduled to commence on November 10, 2014.

[24]

On
    April 29, 2014, the
Rowbotham
application was denied:
R. v. Baron
(April 29, 2014), Sarnia, CR-13-1697 (S.C.). On May 6, 2014, a change of venue
    application brought by all accused was dismissed. On June 4, 2014, the s. 11(b)
    application was dismissed.

[25]

On
    November 4, 2014, shortly before the trial, counsel for Houle appeared before
    the application judge (in his capacity as the Case Management Judge) to seek an
    adjournment of the trial. Ms. Houle had become very ill (with a different ailment).
    Counsel for McGill was prepared to consent to an adjournment. The appellant was
    not present, but raised no objection. In the interests of moving the case
    against the appellant and McGill forward, the application judge severed the
    prosecution against Houle. In making this decision, the application judge said:

So, when I look at the issues in the interests of justice, I am
    content to note that,
prima

facie
, these three persons should be
    tried together because of the nature of the allegations. This is one allegation
    of a fraudulent scheme and it would in the normal course be best to try these
    persons together and it would be in the interests of justice to do so.

This is not the normal case because of the time that it has
    been before the court, because of the nature of the adjournment request now and
    the medical treatment necessary for Ms. Houle.

In my view, it is in the interests of justice for me to sever
    Ms. Houle from this indictment and I do so.

[26]

The
    case went to trial as scheduled. The appellant was found guilty on December 1,
    2014. He was sentenced on November 13, 2015.

(4)

Findings and Analysis of the Application Judge

[27]

The
    application judge found that the time leading up to setting the first
    preliminary inquiry dates (10 months) was neutral time, allowing for intake and
    disclosure. From the time that date was set (October 8, 2010) until defence
    counsel was removed from the record (April 13, 2011), the trial judge
    attributed two months as systemic delay.

[28]

A
    good deal of time prior to the second preliminary inquiry was associated with
    the attempts of the co-accused to obtain funding for representation. Counsel
    for McGill and Houle tried to blame LAO for the delay. The application judge
    examined this issue and disagreed. As he said, at para. 45:

There is nothing about the record here that
    leads me to believe there was any mistake by LAO. The system reacted as
    designed. There is nothing about this process that would require me to assess
    state or institutional delay. It may be that many counsel were reluctant to
    take on this case with a legal aid budget but the record reflects that LAO
    authorized travel and meal expenses which allowed Houle and McGill to expand
    their search area. They have now retained extremely competent counsel pursuant
    to that process.

[29]

The
    application judge noted that, on February 13, 2012, an OCJ judge said that the
    applicants had been diligent in attempting to secure counsel and that the
    delays were not their fault. The application judge disagreed, at para. 46:

Applicant's counsel seeks to view this as
    judicial recognition of institutional delay. While the comment  may or may not
    have been accurate, I find that accuseds' meanderings through the legal aid
    process cannot be seen as delay occasioned by the state. At no time in this 5-month
    period were Houle and McGill ready for the preliminary hearing. I view this
    period as neutral.

[30]

The
    next period of delay arose as a result of Houles illness at the second
    preliminary inquiry. The application judge apportioned the period from February
    13, 2012, to April 24, 2012, as neutral time,
per

the
Morin
framework.

[31]

The
    application judge addressed the period from April 24, 2012 (the date on which
    the appellant first raised delay) until the next preliminary inquiry dates. He relied
    on this courts holding in
R. v. Whylie
(2006), 208 O.A.C. 247 that,
    ordinarily delay caused by the actions of a co-accused is considered neutral
    in the s. 11(b) analysis. However, as the application judge observed, [T]he
    Crown must consider severing the counts where it appears that the delay due to
    a co-accused is prejudicing the others, at para. 56. Although this ground was
    not argued before him on the s. 11(b) application, he considered whether the
    appellants case should have been severed. Relying on
R. v. L.G.
, 2007
    ONCA 654, 229 O.A.C. 89, the application judge held that it is in the interests
    of justice that individuals charged jointly with an offence be tried together.
    The application judge stated, at para. 59:

I find that the concerns about inconsistent
    verdicts and multiple lengthy proceedings were very real here. In the
    circumstances of this prosecution, recognizing the right of the accused to a
    trial in a reasonable time, it would not have been in the interests of the
    administration of justice to sever the accused.

[32]

Despite
    the authorities under
Morin
in favour of apportioning the entire 7 ½
    month time as neutral, the application judge still apportioned 6 of the 7 ½
    months to institutional delay, at para. 48. Thus, it appears that the
    application judge was more than generous to the appellant in apportioning
    institutional delay. Even on this approach, only 8 of the 38 months in the OCJ,
    from December 15, 2009, to February 21, 2013, were attributable to
    institutional delay.

[33]

The
    application judge held that time between committal for trial (February 21,
    2013) to the Assignment Court date (January 24, 2014) was intake time, and thus
    neutral. Part of the problem was the aborted JPT, caused by the failure of
    defence counsel to file proper materials. The rest of this period was caused by
    defence adjournment requests.

[34]

As
    it turned out, trial dates were not actually set on January 24, 2014; they were
    scheduled on February 14, 2014. Nevertheless, the application judge classified
    the 10 ½ months between January 24, 2014 and the projected commencement of the
    trial, on November 10, 2014, as institutional delay.

[35]

Turning
    to the issue of prejudice, the application judge recognized that a five-year
    delay caused some inherent prejudice. He also considered the appellants
    evidence that he suffered from a degenerative eye condition. This made his
    drives from his home in Whitby to court appearances in Sarnia more onerous.
    However, the application judge noted that the appellant was accommodated
    numerous times by bench warrants with discretion.

[36]

The
    application judge dismissed the appellants complaints about his inability to
    travel outside of the province, and its impact on his investment business. The
    Crown had agreed to consider travel requests on a case-by-case basis. This
    offer was made in May of 2011. The appellant made no requests.

[37]

Finally,
    considering societys interest in a trial on the merits, the application judge
    found that the institutional delay of 18 ½ months was only slightly above the
    guidelines prescribed by
Morin
, and not sufficient to find a breach of
    s. 11(b).

(5)

Analysis

(a)

The
Jordan
Framework

[38]

The
    application judge made his ruling based on the governing authority at the time
    
Morin
.
His ruling was released two years before
Jordan
.
    Nevertheless, this appeal must be decided in accordance with
Jordan
.

[39]

Because
    this case was tried in the SCJ, there is a presumptive ceiling of 30 months, after
    deducting defence delay from the total delay. Defence delay is comprised of
    delay that is waived by the defence (
Jordan
, at para. 61;
Cody
,
    at para. 27), and delay that is solely or directly caused by the actions or
    inaction of the defence (
Jordan
, at paras. 66 and 113;
Cody
, at
    para. 28).

[40]

When
    delay exceeds the presumptive ceiling, it falls to the Crown to rebut the
    presumption of unreasonableness by demonstrating exceptional circumstances.
    In
Jordan
, the majority of the Supreme Court defined exceptional circumstances
    as follows, at para. 69:

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. [Emphasis in
    original.]

Exceptional circumstances fall into
    two general categories: discrete events and particularly complex cases (
Jordan
, at para. 71).

[41]

Both
    types of exceptional circumstances are in play in this case. The majority in
Jordan
(at para. 72) identifies medical emergencies as a prime example of a discrete
    event. This figures prominently in relation to Houles first illness. The
    concept of a particularly complex case is also relevant to this appeal. In
Cody
,
    the Court addressed the issue in the following way, at para. 64:

Unlike defence delay and discrete events,
    case complexity requires a qualitative, not quantitative, assessment.
Complexity is an exceptional circumstance only where the case as a
    whole is particularly complex. Complexity cannot be used to deduct specific
    periods of delay.
Instead, once any applicable quantitative deductions are
    made, and where the net delay still exceeds the presumptive ceiling, the case's
    complexity as a whole may be relied upon to justify the time that the case has
    taken and rebut the presumption that the delay was unreasonable
(
Jordan
,
    at para. 80). A particularly complex case is one that "because of the
    nature of the evidence or the nature of the issues, require[s] an inordinate
    amount of trial or preparation time" (
Jordan
, at para. 77).
When
    determining whether a case's complexity is sufficient to justify its length,
    trial judges should consider whether the net delay is reasonable in view of the
    case's overall complexity. This is a determination that falls well within the
    expertise of a trial judge
(
Jordan
, at para. 79). [Footnotes
    omitted; emphasis added.]

The Court clarified, at para. 65, that voluminous
    disclosure is not necessarily emblematic of a complex case, although it might
    qualify as a discrete exceptional event within the framework.

[42]

The
    final step in the
Jordan
analysis applies to cases already in the system
    when
Jordan
was decided  the transitional exceptional circumstance.
    This aspect of the
Jordan
analysis was addressed in this courts
    recent decision in
R. v. Gopie
, 2017 ONCA 728, in which Gillese J.A.
    said, at para. 119:

For cases in the justice system on the date of
Jordan
s release, a transitional exceptional circumstance applies if
    the Crown satisfies the court that the time the case took is justified based on
    the parties reasonable reliance on the previous state of the law. This is a
    contextual assessment, sensitive to the manner in which the
Morin
framework was applied and to the fact that the parties behaviour cannot be
    judged strictly against a standard of which they had no notice when the
    proceedings began.
Considerations of prejudice and the seriousness of the
    offence can inform whether the parties reliance on the previous state of the
    law was reasonable
. [Emphasis added.]

[43]

In addition to
Gopie
, this court has decided numerous
    cases involving the transitional exceptional circumstance: see, for example,
R.
    v. Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433;
R. v. Manasseri
,
2016 ONCA 703, 132 O.R. (3d) 401;
R. v. McManus
,
    2017 ONCA 188, 36 C.R. (7th) 261;

R. v. Gordon
, 2017 ONCA 436,
    348 C.C.C. (3d) 426;
R. v. D.C.
,
2017 ONCA 483;
R. v.
    Mallozzi
, 2017 ONCA 644;
R. v. Pyrek
, 2017 ONCA 476, 349 C.C.C.
    (3d) 554; and
R. v. Picard
, 2017 ONCA 692. In each of these cases
    (with the exception of
Picard
), the appellants trials had been completed
    before
Jordan
.
In these circumstances, the Court in
Jordan
said, at para. 102: Ultimately, for most cases that are already in the system,
    the release of this decision should not automatically transform what would
    previously have been considered a reasonable delay into an unreasonable one.

(b)

The Application of
Jordan

(i)

Introduction

[44]

I
    have concluded that the 59 ½ month delay in this case is justified under the
Jordan

framework. In addition to what I would call the primary
Jordan
factors (defence delay and exceptional circumstances),

I would apply the
    transitional exceptional circumstance, focusing on the reliance that the
    parties and the trial judge placed on
Morin
.

[45]

This
    case demonstrates the difficulties involved in reviewing a
Morin
-based
    decision under
Jordan
.
Morin
focused on institutional delay. The
    other categories of delay  defence delay, neutral time, intake time, and the
    inherent time requirements of the case  could not be visited upon the Crown.
    Thus, under
Morin
, it did not matter if a specific period of delay was
    considered defence delay or neutral because neither could be held against the
    Crown.

[46]

Jordan

discarded this classification scheme. Concepts such as neutral time, intake
    time, and the inherent time requirements of the case are no longer direct lines
    of inquiry  they are reflected in the presumptive ceilings: see
Jordan
,
    at para. 53. Now, it is critical to identify defence delay, as well as delays
    caused by discrete events.

(ii)

Defence Delay, Discrete Events, and Case Complexity Under
Jordan

[47]

The
    trial judge only allocated about 6 months as defence delay. With respect, I
    would allocate 14 ½ months to defence delay. This would include 2 months to
    accommodate defence counsels schedule in having a case management meeting in
    the OCJ (August 9, 2010 to October 8, 2010). I would allocate 2 months of
    defence delay to reflect that the first preliminary inquiry dates were set
    later than necessary to accommodate defence counsel.

[48]

I
    would allocate the entire time between the date set for the start of the first
    preliminary inquiry (August 2, 2011) and the date set for the commencement of
    the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as
    defence delay. This delay was caused by the removal of counsel from the record
    and was the responsibility of all three accused. On appeal, counsel for the
    Crown submits that the entire period of time from counsels removal (April 13,
    2011) until the second preliminary inquiry (February 13, 2012), namely 10
    months, should be deducted. While this position is not unreasonable, I would
    apply only 6 ½ months because the possibility of proceeding on the original
    dates might also be said to have been frustrated by other factors.

[49]

Lastly,
    I would apportion 4 months of defence delay involved in finally setting a date
    for trial in the SCJ. The case was delayed by 9 months (May 10, 2013 to
    February 14, 2014). Some of this delay was caused by multiple defence adjournment
    requests, and the cancelled JPT.

[50]

As
    a discrete event, I would also deduct from the total delay the entire period of
    time between the second and third preliminary inquiry dates (February 13, 2012
    to December 7, 2012)  10 months. This was triggered by Houles illness, a
    matter completely beyond the Crowns control, which caused the time protected
    for the second preliminary inquiry to be lost. As discussed below, under my
    discussion of the transitional exceptional circumstance, I agree with the application
    judge that it was reasonable for the Crown to continue against all three
    accused; the Crown was not required to sever the appellant as a form of
    mitigation for this unforeseen event.

[51]

From
    the total delay of 59 ½ months, I would deduct 24 ½ months for defence delay,
    and the delay caused by Houles illness. Consequently, the net delay under
Jordan
is 35 months.

[52]

While
    this exceeds the presumptive ceiling, the extra time that it took to bring this
    fraud prosecution to trial may be explained by the complexity of the case,
    taking into account the number of charges, the number of accused, the
    sophistication of the fraud, and the voluminous disclosure. I discuss the
    complexity of the case further in the following section.

(iii)

The Transitional Exceptional Circumstance

[53]

I would also rely upon the transitional exceptional
    circumstance to justify the delay involved in completing this trial. While determining
    the delay for
Jordan
purposes is a
    quantitative exercise (except when considering the complexity of the case as
    part of the exceptional circumstances category), the application of the
    transitional exceptional circumstance
involves a qualitative analysis. At
    its core is the avoidance of unfairness to the parties caused by their
    reasonable reliance on
Morin
. Although the analysis at this juncture
    is qualitative, it is not without form. In
Gopie
, Gillese J.A.
    identified the criteria to be applied, at para. 178:

In
R. v. Williamson
, 2016 SCC 28,
    [2016] 1 S.C.R. 741, the majority decision discussed, as the relevant
    considerations informing the transitional exceptional circumstance analysis:
    (i) the complexity of the case; (ii) the period of delay in the excess of the
Morin
guidelines; (iii) the Crowns response, if any, to any institutional delay;
    (iv) the defence efforts, if any, to move the case along; and (v) prejudice to
    the accused.

Applying these factors, the overall
    delay is reasonable under s. 11(b)

The
Morin
Guidelines

[54]

The
    application judge properly applied the
Morin
framework.  He engaged in
    a detailed review of the record and provided clear reasons for the conclusions
    that he reached.

[55]

The
    application judge found that only 18 ½ months of the entire delay was
    institutional delay. The rest he attributed to defence delay and neutral time.
    Importantly, he found that the Crown did not cause any delay through its
    conduct.

[56]

As
    I have explained above, the application judge could have allocated more time to
    defence delay. However, it made no difference to his ultimate determination of
    institutional delay, which is the focus of the
Morin
inquiry: see
Jordan
,
    at para. 52, n. 4.

[57]

One period where more time should have been allocated as defence
    delay was the removal of defence counsel from the record. As I have already
    noted in para. 6, above, it was almost inevitable that a single lawyer could
    not represent all three accused persons in a large-scale fraud prosecution such
    as this one. A good deal of time was wasted in this 15-month period of joint
    representation.

[58]

When
    counsel was removed, it set off a chain of events that lingered the entire time
    that the case was in the OCJ. The case had a difficult time recovering from
    this event; it had to start all over again. All accused scrambled to find new
    counsel. After much time and effort, involving multiple applications in both
    the OCJ and the SCJ, McGill and Houle were successful; the appellant was not.

[59]

The
    Crown was not in any way responsible for this event. It had not sought the
    removal of defence counsel. When counsel was removed, the Crown and the court
    were placed in a holding pattern, while the accused struggled to retain
    counsel. The retention of counsel and the extensive involvement of LAO was
    properly characterized by the application judge as part of the inherent time
    requirements of the case under
Morin
: see
R. v. Boateng
, 2015
    ONCA 857, 128 O.R. (3d) 372; and
Picard
, at para. 90.

[60]

Further
    challenges were created by Houles illness as the preliminary inquiry was
    scheduled to proceed in February of 2012. Mr. Stein argues that the Crown ought
    to have severed Houle at this point. I disagree.

[61]

This
    event must be viewed in a broader context. Just before Houle became ill, the
    spectre of an adjournment had already arisen. The appellant was prepared to
    consent to this adjournment. However, the Crown was not  it wished to push
    ahead full-steam, or at least mitigate the fallout by calling some out-of-town
    witnesses. This constructive approach was ultimately undermined by Houles
    illness. None of the accused requested severance at this point. The appellant
    certainly did not. He was content that the case be adjourned. It was only a few
    months later (on April 24, 2012) that he raised the issue of delay for the
    first time.

[62]

Operating
    within the
Morin

framework, the application judge was correct
    to treat the delay caused by the co-accused as neutral time: see
Whylie
,
    at para. 24; and
L.G.
, at paras. 62-63. He also recognized the
    importance in trying co-accused together, a principle that was recently
    endorsed by this court in
R. v. Zvolensky
, 2017 ONCA 273, 135 O.R.
    (3d) 401, per Watt J.A., at paras. 245-255.

[63]

This
    case is not like
R. v. Vassell
, 2016 SCC 26, [2016] 1 S.C.R. 625, in
    which Mr. Vassells persistent and proactive efforts to have a trial as soon as
    possible were thwarted by the delay caused by his six co-accused.

[64]

Here,
    the appellant was content with the pace of the proceedings, never raising the
    issue of severance. Severance was not appropriate in any event, given the
    complexity of the case, the nature of the allegations, and the evidence common
    to all three accused.

[65]

Mr.
    Stein says it is ironic that, as the trial was about to get started, Houle was
    severed from the appellant and McGill. I see no irony here. Houle suffered with
    a serious illness (different from her previous illness). She had undergone
    surgery, and was receiving other treatment. Further surgery was anticipated.
    Her counsel moved to have the trial adjourned. The Crown resisted. Given the
    amount of time that had passed, and on the eve of trial, severance was the only
    option realistically available to the Case Management Judge. This unforeseen
    and most unfortunate development ought not to reflect negatively on the Crowns
    previous failure to seek severance when the case was in the OCJ.

[66]

Returning
    to the criteria set out in
Gopie
, at para. 53 of my reasons above, the
    institutional delay in this case of 18 ½ months exceeded the
Morin

guidelines,
    but only slightly. When the complexity of this case is considered, the delay
    was reasonable.

Case Complexity

[67]

The
    case was complex. From the first appearance onwards, this was how everyone
    characterized the case  judges, the Crown, defence counsel, and the appellant.
    On appeal, Mr. Stein (whose submissions were restricted to the 11(b) issue)
    backs away from this characterization. He points to the shortness of the trial
    and the relatively brief instructions to the jury. On the other hand, the
    appellant, who argued grounds of appeal related to the trial judges jury
    instructions, contended that the instructions were deficient because they
    failed to reflect the complexity of this large-scale fraud prosecution.

[68]

From
    the outset, it was apparent that the case was complex. It involved three
    accused persons, 22 victims, and millions of dollars in losses. In the early
    days of this prosecution, approximately 10,000 pages of materials were
    disclosed. Defence counsel required multiple adjournments to get a handle on
    the case. On one appearance, he told the judge that it was fortunate that he
    was able to rely upon his associates because, if he were a sole practitioner,
    he would not have been able to manage on his own.

[69]

The
    complexity of the case, and the accompanying voluminous disclosure, no doubt hampered
    the accused in retaining new counsel. It is also worth noting that LAO
    considered the case to be complex. The BCMT became involved in the ongoing
    funding decisions about the case in relation to McGill and Houle.

[70]

Mr.
    Stein argues that, because the trial took only eight days of court time, the
    case was straightforward. However, the Crown, defence counsel for McGill and
    Houle, and the very experienced Case Management Judge determined that a
    reasonable period of time for trial was four to five weeks. The case did not shed
    its complexity merely because the trial was shorter than anticipated.

[71]

In
    gauging the complexity of the case, it is an error to focus exclusively on the
    end product  the trial. Case complexity must be evaluated over the course of
    the entire proceedings. As Rouleau J.A. held in
Picard
, at para. 62:

A case can be complex in the earlier stages
    and require extensive disclosure, the compiling of expert evidence and numerous
    witness statements, only to be made simpler and more straightforward when it
    comes time for trial. These kinds of complexity in the early stages may result
    in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry
    and so on, although the case is simple by the time of trial.

These observations apply to this
    case.

[72]

Although
    the application judge used
Morin

principles to conclude that
    the case was complex, his finding is supportable under the
Jordan
framework: see
Gopie
, at para. 172.

The Seriousness of the Offences

[73]

In
    cases applying the transitional exceptional circumstance, the seriousness of
    the alleged offences remains a significant consideration: see
Cody
, at
    paras. 70-71;
Picard
, at para. 79; and
Gopie
, at para. 119.

[74]

The
    seriousness of this case is illustrated in this courts decision in relation to
    the Crowns appeal of McGills sentence. The trial judge sentenced McGill to a 23-month
    conditional sentence. This court allowed the appeal and imposed a four-year
    penitentiary term: see
R. v. McGill
, 2016 ONCA 139. As the court said,
    at paras. 7 and 16:

The offences have had a significant impact on
    the lives of the 22 victims. Several lost their homes. Some have declared
    bankruptcy and others have had their retirement years ruined.

. . .

Given the size of the fraud, the lengthy time
    period over which it took place, the motivation of greed, the breach of trust, the
    number of victims, and the devastating impact on those victims, a penitentiary
    sentence was required. Baron was sentenced to six years in prison for his role
    in these offences. It was Baron who instigated the scheme and took the majority
    of the benefits from it. Given the respondent's lesser degree of culpability,
    in our view, a fit sentence is four years' imprisonment.

[75]

These
    after-the-fact observations fortify the application judges conclusion. They validate
    the societal interest in having this case tried on its merits.

The Crowns Response and Defence Efforts

[76]

Mr.
    Stein argues that the prosecution of this case exemplifies the culture of
    complacency within the system towards delay:
Jordan
, at para. 4. I
    disagree.

[77]

A
    careful review of the record reveals that the Crown was always anxious to move
    things forward. The only shortcoming the appellant is able to identify is the
    Crowns failure to sever the accused after the second preliminary inquiry
    collapsed, a submission to which I would not give effect. The Crown took all
    reasonable steps to keep the case moving towards trial.

[78]

Similarly,
    judges in both the OCJ and the SCJ did not display a complacent attitude
    towards the progress of the case. This was not a case in which the three
    accused continually bounced from judge-to-judge as the case proceeded to trial.
    In the OCJ, a single judge stayed with the case and was present at almost all
    appearances. He was knowledgeable of the history of the case and responded to
    events as they happened. Similarly, in the SCJ, a Case Management Judge was
    appointed under s. 551.1 of the
Criminal Code
. He was proactive and
    efficient in bringing the case to trial as quickly as possible. He heard all of
    the applications associated with the case, including the one under appeal.

[79]

For the most part, the appellant seemed satisfied with the pace
    of the proceedings. When the second preliminary inquiry dates were about to be
    lost, the appellant said  Who am I to deny them their lawyer? and I don't
    think it makes any consequence to me Your Honour at this point. It is true
    that he raised s. 11(b) in the OCJ, and again in the SCJ. However, there are
    numerous examples in the record of the appellant allowing the process to unfold
    as it did, not voicing complaints about the pace of the proceedings.

Conclusion

[80]

I
    end this section by referring to a passage from
Pyrek
. Writing for the
    court, Laskin J.A. examined
Jordan
and said the following, at para.
    32:

Finally, in
Jordan
itself, at
    para. 98, the court categorized the kind of transitional case in which the
    delay would warrant a stay, and the present case is far removed from that
    categorization. The court said: "if the delay in a simple case vastly
    exceeds the ceiling because of repeated mistakes or missteps by the Crown, the
    delay might be unreasonable even though the parties were operating under the
    previous framework." The present case was not "simple". The
    delay did not "vastly" exceed the ceiling. And the delay was [not]
    caused by "repeated mistakes or missteps".

See, also,
Gordon
, at para. 24, in which
    Doherty J.A. referred to the same passages from
Jordan
and said, The
    language in the above-quoted passage describes a narrow category of cases.

[81]

This
    case is not one of those narrow category of cases for which a stay is
    warranted. The net delay in this case did not vastly exceed the presumptive
    ceiling.

Throughout the proceedings, all parties were completely faithful
    to
Morin
. They governed themselves in accordance with that regime,
    having no idea that the landscape was about to radically shift. It would be
    unfair to measure the Crowns conduct strictly by
Jordan

standards,
    with no allowance for its reasonable reliance on
Morin
.


[82]

I
    would dismiss this ground of appeal.

C.

the charge to the jury

[83]

The
    appellant advanced other grounds of appeal without the assistance of duty
    counsel. He provided written submissions in support of his arguments.

[84]

The
    appellant argues that the trial judges final instructions to the jury were
    unfair, brief, unbalanced, prejudicial and undermined his defence. He makes a
    litany of complaints, including: (a) the trial judge spent too much time
    focused on the Crowns case to the detriment of the appellants position; (b)
    the trial judge failed to mention a document, marked as Exhibit A, containing
    the appellants objection to the courts jurisdiction to conduct the trial; (c)
    the trial judge told the jury that they were not to treat the appellant any
    differently because he was self-represented; (d) the trial judge
    mischaracterized the evidence of an auditor called by the Crown as part of its
    case; (e) the trial judge failed to refer to portions of the cross-examination
    of an RCMP officer; (f) the trial judge erred in describing McGills
    cross-examination as it pertained to Exhibit A; and (g) the charge was brief,
    unbalanced, and encouraged the jury to find the appellant guilty.

[85]

I would not give effect to any of these complaints. In
R. v.
    Jacquard
,
[1997] 1 S.C.R. 314, the Supreme Court of
    Canada prescribes a functional approach to reviewing jury charges. This entails
    reviewing the charge as a whole, and not dissecting isolated passages. In
R.
    v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, the Court
    held, at para. 31:

The standard that a trial judge's instructions
    are to be held to is not perfection. The accused is entitled to a properly
    instructed jury, not a perfectly instructed jury: see
Jacquard
, at
    para. 2. It is the overall effect of the charge that matters.

[86]

The
    trial judges instructions as a whole meet these requirements. Although the
    trial judge may not have instructed the jury in the manner in which the
    appellant had hoped, a review of the instructions as a whole reveal that she
    approached her task in a fair and even-handed manner. The charge was not biased
    in the way that the appellate claims. It was responsive to the fact that the
    bulk of the evidence was introduced in the Crowns case.

[87]

The
    appellants complaint about the manner in which the trial judge dealt with
    Exhibit A is baseless. Exhibit A is an affidavit sworn by the appellant,
    with many attachments. In it, the appellant advances a Freeman-on-the-Land claim,
    objecting to the jurisdiction of the court to try him.

[88]

The
    appellant introduced this document at the beginning of the trial. The trial
    judge dismissed the appellants jurisdictional claim. Because the document was
    made a lettered exhibit, the jury never saw it. As part of the Pre-Charge
    Conference, the trial judge expressed concern that, if the jury were to see
    this document, the appellant might be prejudiced. The following exchange took
    place:

The Court:   And I think my view is that it would be highly
    prejudicial to you if the jury saw this.

The Appellant: Okay. Fine, Your Honour.

[89]

Similarly,
    I would not give effect to the appellants arguments about the manner in which
    the trial judge dealt with other, individual pieces of evidence. I am not persuaded
    that she erred in the manner that the appellant claims.

[90]

I
    would reject this ground of appeal.

D.

The sentence appeal

[91]

The
    appellant initially appealed his convictions and his sentence. No materials
    were filed in relation to the sentence appeal. At the hearing of the appeal,
    the appellant made no submissions on the issue; Mr. Stein made no submissions
    on the appellants behalf. Although a Notice of Abandonment has not been filed
    in relation to the sentence appeal, in all of the circumstances, I would
    dismiss the sentence appeal as abandoned.

E.

Conclusion

[92]

I
    would dismiss the appeals from conviction and sentence. I would also like to
    express my appreciation to Mr. Stein for the able manner in which he assisted
    the appellant on the s. 11(b) portion of this appeal.

Released: GT October 5, 2017

Gary T. Trotter
    J.A.

I agree. E.E.
    Gillese J.A.

I agree. Grant
    Huscroft J.A.





[1]

This refers to an application, based on
R. v. Rowbotham
(1988), 25 O.A.C. 321 (C.A.), to have counsel appointed by the court and funded
    by the Attorney General.



[2]
This refers to an application, based on
R. v. Fisher
, [1997] S.J. No.
    530 (Q.B.), for an order requiring Legal Aid Ontario (LAO) to pay counsel
    above the standard legal aid rates.


