



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Charity, 2022 ONCA 226

DATE: 20220321

DOCKET: C65706

Tulloch, van Rensburg and
    Nordheimer JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Craig Charity

Appellant

Andrew Guaglio and Michelle Psutka, for
    the appellant

Michael Fawcett and Andrew Hotke, for
    the respondent

Heard: September 8, 2021 by video conference

On appeal from the conviction entered on
    April 11, 2018 by Justice Graham Wakefield of the Ontario Court of Justice, and
    from the sentence imposed on August 17, 2018.

Tulloch J.A.:

OVERVIEW

[1]

The appellant was convicted of defrauding a
    business partner of $378,491.60. The fraud arose out of fraudulent invoices and
    receipts he tendered as legitimate business expenses. As a result of his
    conviction, he was sentenced to 18 months incarceration followed by three years
    of probation and a restitution order for the full amount of the fraud. He now
    appeals his conviction and seeks leave to appeal his sentence.

[2]

The appellant raises two issues on his
    conviction appeal. First, he submits that the trial judge erred in dismissing
    his s. 11(b) application. Second, the appellant submits that the trial judge
    erred in his analysis under the third branch of
R. v. W.(D.)
, [1991] 1
    S.C.R. 742, by using his disbelief of the appellants evidence to bolster the
    Crowns proof of guilt.

[3]

With respect to the sentence appeal, the
    appellant submits that the trial judge imposed a sentence that effectively
    doubled the amount of expenses he found to be fabricated or inflated. He
    submits that this alleged error warrants adjustments to both the custodial
    sentence imposed and the quantum of restitution ordered.

[4]

The Crown submits that the appeal should be
    dismissed, or in the alternative, the Crown raises a new issue on appeal with
    respect to the appropriate remedy that should be imposed if a s. 11(b)
    violation is found. The Crown submits that if this court finds that the trial
    judge erred in his s. 11(b) analysis, we should revisit the remedies available
    under s. 24(1) of the
Charter
for s. 11(b) violations and impose a
    sanction other than a stay of proceedings.

[5]

For the reasons below, I would allow the appeal
    based on a s. 11(b) violation. I would not give effect to the Crowns
    new argument of revisiting the stay remedy. While this conclusion is
    determinative of the appeal, for completeness I will also address the
    appellants
W.(D.)
argument and sentence appeal.

HISTORY OF THE PROCEEDINGS

[6]

On March 24, 2015, the appellant was arrested
    for fraud and released on a promise to appear. His first appearance date took
    place on April 13, 2015. A subsequent court appearance was scheduled for May
    11, 2015; however, defence counsel failed to appear or arrange for an agent and
    a judicial pre-trial could not be scheduled in his absence. The parties
    appeared again on June 1, 2015, and a judicial pre-trial was scheduled for July
    24, 2015, the first available date for the defence.

[7]

On July 24, 2015, the judicial pre-trial
    proceeded as scheduled via telephone, but both the appellant and his counsel
    were absent. The case was adjourned to August 10, 2015. On August 10, the Crown
    and defence counsel scheduled a preliminary hearing to be held on May 11-12,
    2016.

[8]

On March 4, 2016, defence counsel applied to be
    removed from the record. The preliminary hearing dates were preserved. On May
    11, 2016, the appellant waived his right to a preliminary inquiry and re-elected
    trial in the Ontario Court of Justice with the Crowns consent. A second
    judicial pre-trial was scheduled for June 17, 2016. The appellant also waived
    his s. 11(b) right until the next court appearance.

[9]

On June 17, 2016, the judicial pre-trial was
    adjourned to July 19, 2016, as the defence was not prepared to proceed. The
    Supreme Court of Canadas decision in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631, setting out the new approach to s. 11(b), was released on
    July 8, 2016. At the judicial pre-trial on July 19, a status hearing was
    set for February 1, 2017. Trial dates were set for May 8-10 and 15-18,
    2017.

[10]

In the months leading up to the status hearing,
    defence counsel and the Crown discussed the potential need for additional trial
    days. The trial coordinator advised them that adding trial days might be
    difficult and could lead to significant delay.

[11]

The status hearing proceeded on February 1, 2017
    and was followed by a second status hearing on March 20, 2017. At the second
    status hearing, defence counsel noted difficulties in preparing for trial due
    to two Crown re-assignments. Between March and May 2017, the Crown made further
    disclosure.

[12]

The trial took place on May 8-10 and 15-18, 2017
    and was adjourned to September 18 and 21, 2017 for completion. On September 21,
    the trial judge requested written submissions from both parties. The defence
    requested to provide its submissions after the Crown. The deadline for Crown
    submissions was set for December 15, 2017. On December 1, 2017, the deadline
    for defence submissions was set for January 15, 2018.

[13]

By the parties next court appearance on January
    23, 2018, the defence had filed a s. 11(b) application. The matter was
    adjourned to February 9, 2018, for the delivery of the ruling. The matter was
    further adjourned to March 16, 2018, and then to April 11, 2018, due to the
    volume of the submissions and because the trial judge was ill.

[14]

On April 11, 2018, the trial judge denied the s.
    11(b) application and convicted the appellant of fraud over $5,000. The trial
    judge delivered his reasons for sentence on August 17, 2018.

THE SECTION 11(b) BREACH

[15]

The parties at trial agreed that the ceiling for
    presumptively unreasonable delay was 30 months according to
Jordan
.
    The Crown conceded that the total delay was 36 months and 10 days but argued
    that the net delay was 18 months and 28 days.

[16]

The trial judge agreed with the Crown. The
    appellant was responsible for the delay caused when preliminary hearing dates
    could not be arranged at the July 24, 2015 judicial pre-trial because
    the defence both failed to appear and failed to arrange for an agent to obtain
    preliminary hearing dates. There were also several discrete exceptional
    circumstances. First, the defences underestimation of the time necessary for
    trial required the late addition of further trial dates. Second, the defence
    counsels request for the Crown to make its written submissions before the
    defence was an implicit waiver by defence counsel. Furthermore, the one-month
    period where the trial judge was ill was also counted as a discrete exceptional
    circumstance. Therefore, the net delay was 18 months and 28 days.

[17]

The appellant now submits that the trial judge erred
    in his s. 11(b) analysis by finding that the total delay fell below the
Jordan
ceiling. The appellant argues, and the Crown concedes, that the trial judge incorrectly
    identified the presumptive ceiling for delay and therefore erred in finding his
    s. 11(b) rights were not violated. In fairness to the trial judge, he did not
    have the benefit of this courts decision in
R. v. Shaikh
, 2019 ONCA
    895, 148 O.R. (3d) 369, explaining which presumptive ceiling applies when a
    re-election occurs. However, the Crown argues that a stay of proceedings is not
    the appropriate remedy for this
Charter
violation and that a lesser
    remedy can and should be imposed.

[18]

I address first the Crowns fresh evidence
    application. Next, I will deal with the procedural arguments as to whether the
    Crown should be permitted to raise this new issue on appeal. I will then
    briefly discuss the proposed remedy framework itself, before providing some
    concluding remarks.

(1)

The Crowns Fresh Evidence Application

[19]

The Crown seeks to admit fresh evidence to
    substantiate its argument as to why the court should re-visit the issue of the
    appropriate remedy for s. 11(b) violations. I would not admit the
    proposed fresh evidence for the following reasons.

[20]

The Crown seeks to admit two pieces of fresh evidence.
    The first is email correspondence between the Crown and defence counsel in
    which defence waives a period of delay. The Crown argues that this email
    provides context to the circumstances under which the Crown consented to the
    appellants re-election. In my view, having regard to the test set out in
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759, I would not admit this
    evidence.

[21]

This correspondence could have been provided as
    evidence at the trial. I do not find the Crowns explanation for its omission
    satisfactory: the Crown states that it only became relevant once the parties
    realized the correct presumptive ceiling was 18 months and not 30 months. In my
    view, given that under either ceiling the email goes to the issue of waiver of
    delay, it should have been adduced at trial. In any case, the Crown concedes
    that there was a violation of the appellants s. 11(b) rights, so I
    am not entirely clear on the purpose this evidence serves.

[22]

The second piece of fresh evidence the Crown
    applies to admit is statistical evidence on the number of active pending
    criminal trial cases and their average time for disposition in the Ontario Court
    of Justice and in the Superior Court of Justice between 2015 and 2021. The
    Crown argues that it is relevant to understanding the impact of
Jordan
on delay and the circumstances that it argues warrant revisiting the s. 11(b)
    remedy.

[23]

This information was not available at trial. The
    appellant opposes the admission of this evidence. I agree with the appellant
    that there are concerns about the accuracy and usefulness of the statistical
    charts: they are not accompanied by an affidavit by the person(s) who assembled
    the data. Furthermore, the charts themselves indicate that their accuracy is
    not guaranteed and should be approached with caution, and they do not provide
    any meaningful insights as to the appropriateness of a stay as a remedy.

[24]

In my view, having regard to the test in
Palmer
,
    while this information could be useful if it were credible, it cannot possibly
    affect the issue of whether to adopt a new approach to the s. 11(b) remedy,
    given some of the concerns with its accuracy. As such, the application to admit
    fresh evidence is denied.

(2)

The Crown Raises a New Issue on Appeal

[25]

The Crown submits that a stay of proceedings
    should no longer be the single available remedy for a breach of s. 11(b)
    rights; instead, a spectrum of remedies, including a stay, is available and
    could be ordered under s. 24(1). Examples of such remedies are the following:
    relaxed bail terms to alleviate liberty restrictions; enhanced credit for
    pre-trial custody; an order to expedite the proceeding; a declaration of a
Charter
violation; and a sentence reduction. The purpose of employing a spectrum of
    remedies is to target the actual prejudice caused by the delay, as opposed to
    simply ending the proceeding. Which remedy would be most appropriate would
    depend on what harm the accused person suffered.

[26]

The Crown raises this issue of a new remedy for
    the first time on appeal. The appellants argue that it should not be permitted
    to do so for three reasons:

1.

New issues that expand the scope of litigation should not be allowed
    on appeal;

2.

Stare decisis
dictates that only the
    Supreme Court can revisit the remedy for s. 11(b) breaches; and

3.

This court does not have jurisdiction to implement a new remedy for
    s. 11(b) breaches.

[27]

I am persuaded by the appellants arguments. In
    my view, the Crown is precluded from a procedural perspective from raising this
    issue on appeal. I will address each of the appellants arguments in turn.

(a)

The Scope of the Litigation

[28]

Generally speaking, if a new issue on appeal
    would expand the scope of the litigation, the court should not permit the issue
    to be argued:
R. v. Richards
, 2015 ONCA 348, 323 C.C.C. (3d)
    490, at para. 49. In making this determination, a court should consider whether
    the interests of justice require an exception to the normal and accepted course
    of litigation and whether there is a proper or sufficient factual and
    evidentiary record to determine the issue:
Perez (Litigation Guardian of)
    v. Salvation Army in Canada
(1998), 42 O.R. (3d) 229 (C.A.), at p. 233.

[29]

Each of these factors weighs against the Crown.
    The issue of new remedies for s. 11(b) breaches expands the scope of the
    litigation greatly; the appellant did not anticipate arguing the issue of a
    remedy if a breach were found, given the longstanding jurisprudence that a stay
    of proceedings must follow from a breach of s. 11(b).

[30]

Additionally, I am not persuaded the interests
    of justice require an exception in this case. As in
Perez
, there was
    no reason this argument could not have been advanced at trial. The Crown states
    that the argument was not raised at the trial because a s. 11(b) argument
    (presumably by the defence) was unlikely to be successful. In my view, it would
    have been reasonable for the Crown to anticipate the possibility that the trial
    judge would not agree with their calculation of delay and would instead find
    that there was a s. 11(b) breach; in that case, the issue of remedy would have
    been engaged, and the Crown could have argued for a different remedy.

[31]

There is also the issue of the factual record.
    As observed by this court in the past, when issues are raised for the first
    time on appeal, the factual record can often be deficient because the new
    issues were not thoroughly canvassed below. I too adopt this observation.
R.
    v. Reid
, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016]
    S.C.C.A. No. 432, at paras. 42-43, sets out the hurdles to be overcome in such
    instances:

[42] The burden is on the party who seeks to
    raise the new issue on appeal to bring the argument to be advanced within the
    exception to the general prohibition. It is incumbent on that party to
    demonstrate that all the facts necessary to address the proposed issue are as
    fully before the appellate court as they would have been had the issue been
    argued at trial. As the evidentiary disputes generated by the materials first
    filed on appeal mount, the likelihood that an appellate court will hear the
    argument diminishes.

[43] A party who seeks to escape the grip of
    the general prohibition against raising issues for the first time on appeal
    must meet or satisfy three preconditions:

(i) the evidentiary record must be
    sufficient to permit the appellate court to fully, effectively and fairly
    determine the issue raised on appeal;

(ii) the failure to raise the issue at
    trial must not be due to tactical reasons; and

(iii) the court must be satisfied that no
    miscarriage of justice will result from the refusal to raise the new issue on
    appeal. [Citations omitted.]

See also
R. v. Greer
, 2020
    ONCA 795, at para. 91.

[32]

Only the first precondition is at issue in this
    case: there are no allegations that the failure to raise this issue was
    tactical, and no miscarriage of justice would result from refusing to hear the
    issue, given that the current remedy has long been considered the appropriate
    remedy.

[33]

With respect to the first precondition, the
    concern that the evidentiary record may not be sufficient is most apparent in
    the face of the application to admit fresh evidence on this point. However,
    even if the fresh evidence were admitted, I agree with the appellant that it is
    questionable whether this evidence, along with other evidence on the record,
    creates a sufficient factual record: as noted above, the statistics urge
    caution in relying on their accuracy, which is precisely what the Crown seeks
    to do. The statistics also state that the data:

[I]s being provided with the consent of the
    Ontario Court of Justice for the purpose specified in the request. This data is
    not to be used for another purpose or shared with any other person or
    organization without the OCJs consent.

It is not clear what the purpose of
    the request was and, in turn, whether this court should be relying on it.

[34]

Moreover, in my view, this evidence should have
    gone before a trial judge to determine its probative value; the weighing of
    this evidence should not be done without the benefit of a trial judges reasons
    in the regular course of an appeal. This court in
R. v. Roach
, 2009
    ONCA 156, 246 O.A.C. 96, at para. 7, acknowledged that it will be rare to allow
    an argument based on a fresh evidentiary record:

An appellate court will be most inclined to
    exercise its discretion in favour of hearing a new argument where that new
    argument can be fully addressed and determined based on the trial record.
More rarely
, an appellate court will hear a new argument
    based on an evidentiary record laid out for the first time in the court of
    appeal. [Emphasis added.] [Citations omitted.]

[35]

This is not the type of rare case that warrants
    an exception.

(b)

Stare Decisis

[36]

In my view, the principle of
stare decisis
also precludes this court from acceding to the Crowns request to change the
    established remedy of a stay for a s. 11(b) breach.

[37]

In
Canada (Attorney General) v. Bedford
,
    2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42, 44, the court explained
    that the threshold for revisiting a matter decided by a binding authority is
    not a low one:

[42] Similarly, the matter may be revisited if
    new legal issues are raised as a consequence of significant developments in the
    law, or if there is a change in the circumstances or evidence that
    fundamentally shifts the parameters of the debate.



[44] [A] lower court is not entitled to ignore
    binding precedent, and the threshold for revisiting a matter is not an easy one
    to reach. In my view, as discussed above,
this threshold
    is met when a new legal issue is raised, or if there is a significant change in
    the circumstances or evidence
. This balances the need for finality and
    stability with the recognition that when an appropriate case arises for
    revisiting precedent, a lower court must be able to perform its full role.
    [Emphasis added.]

[38]

The Supreme Court reaffirmed this two years
    later in
Carter v. Canada (Attorney General)
, 2015 SCC 5, [2015] 1
    S.C.R. 331, at para. 44:

The doctrine that lower courts must follow the
    decisions of higher courts is fundamental to our legal system. It provides
    certainty while permitting the orderly development of the law in incremental
    steps. However,
stare decisis
is not a straitjacket that condemns the
    law to stasis. Trial courts may reconsider settled rulings of higher courts in
    two situations: (1) where a new legal issue is raised; and (2) where there is a
    change in the circumstances or evidence that fundamentally shifts the
    parameters of the debate. [Citations omitted.]

[39]

The conditions justifying a departure from
    binding precedent are not present here. It is instructive to consider the
    comments of the Supreme Court in
Jordan
, at para. 39, on how [t]he
    framework set out in
Morin
has given rise to both doctrinal and
    practical problems, contributing to a culture of delay and complacency towards
    it. In the absence of analogous doctrinal or practical problems with applying
    the s. 11(b) remedy, I am hard-pressed to find a sufficient change in
    circumstances to warrant departing from the binding precedent which has been
    established over the last thirty years with respect to the remedy of a stay for
    a s. 11(b)
Charter
breach.

[40]

I do not agree with the Crown that the re-formulated
    test in
Jordan
is a sufficiently significant or abrupt change in the
    law to warrant considering an entirely new remedy. While
Jordan
re-formulated the test for determining whether there was unreasonable delay,
    the underlying principles and the imperative to staunchly protect s. 11(b)
    rights remained the same. Although
Jordans
new framework was a
    departure from the law that was applied to s. 11(b) applications in the past
    and a significant shift from past practice, on the facts before the court,
    the re-formulated test does not make a stay of proceedings any less appropriate
    of a remedy for unreasonable delay, nor does it re-open the question of what an
    appropriate remedy would be: at paras. 93, 108.

[41]

I also disagree with the Crown that this courts
    decision in
Shaikh
constitutes an abrupt change in the law. In
Shaikh
this court explained that when an accused person re-elects to trial in the
    provincial court, the 18-month ceiling applies. As Paciocco J.A. explained in
Shaikh
,
    at para. 53, the court was merely applying the comments in
Jordan
:

I appreciate that
Jordan
did not
    involve a re-election, and so this issue was not directly before the court.
    However,
Jordan
was not about delay in a provincial court trial
    either. In the interests of certainty and simplicity, the majority nonetheless
    established an authoritative framework for provincial court trials as well,
    setting a presumptive period of unreasonable delay of 18 months. In the
    circumstances, I do not feel at liberty to interpret the criterion specifically
    identified by the
Jordan
majority as a passing comment when it is
    manifest that the majority was delineating how its presumptive delay framework
    was to apply.

[42]

Therefore, I find that
stare decisis
also precludes the Crown from advancing its argument on a new remedy.

(c)

Jurisdiction

[43]

The Crown further argues that s. 24(1) of the
Charter
specifically provides courts with a broad jurisdiction to remedy a
Charter
breach. Section 24(1) reads as follows:

Anyone whose rights or freedoms, as guaranteed
    by this Charter, have been infringed or denied may apply to a court of
    competent jurisdiction to obtain such remedy as the court considers appropriate
    and just in the circumstances.

[44]

The Crowns position is that a stay of
    proceedings is not a mandatory remedy for s. 11(b) violations but that the
    court can impose a remedy that is tailored to the specific circumstances of the
    case.

[45]

There have been somewhat differing approaches to
    the issue of jurisdiction in the s. 11(b) context. In
Mills v. The Queen
,
    [1986] 1 S.C.R. 863, the majority stated that the language of s. 24(1) did not
    support a view that a court loses jurisdiction when there is a
Charter
breach, and that such an interpretation of s. 24(1) would remove the
    discretion afforded under s. 24(1) to impose the appropriate remedy in the
    circumstances of the case: at pp. 964-65. Justice La Forest, concurring,
    expressed a similar view that unreasonable delay does not give rise to a
    jurisdictional issue and that to require a stay in every case would give the
    right in s. 11(b) a pre-eminence over other
Charter
rights which is
    contrary to the language of the
Charter
and social values: at p. 973.
    In contrast, Lamer J., dissenting, stated that s. 11(b) creates a right not to
    be tried once there has been unreasonable delay, and that a stay of proceedings
    is the minimum remedy: at p. 947.

[46]

Just a year later, in
R. v. Rahey
,
    [1987] 1 S.C.R. 588, the issue was addressed once again. A majority of the
    court determined that a stay of proceedings is the minimum remedy for a s.
    11(b) violation, though the court was divided as to the reasons why. Justice
    Lamer stated, at p. 614, that once there is unreasonable delay, no court has
    jurisdiction to try [an accused] or order that he be tried in violation of that
    right: at p. 614. Justice La Forest took an opposite view, opining that a
    trial judge has at his or her disposal the fullest range of criminal remedies,
    including, for example, a reduction in sentence: at p. 630.

[47]

While there is merit to the Crowns argument
    that a court does have jurisdiction to order a remedy other than a stay of
    proceedings based on the language of s. 24(1) in the absence of a clear holding
    from a majority of the Supreme Court that jurisdiction is lost after
    unreasonable delay, I do have some concerns with this argument. I am not
    satisfied that there is sufficient reason for this court to depart from the
    binding precedent of our court and the Supreme Court. As I explained in the
    section on
stare decisis
, I am not satisfied that this case and the current
    state of the law warrant departing from established precedent; I would leave
    that question to the Supreme Court. Moreover, this court has recently re-affirmed
    in
R. v. Charley
, 2019 ONCA 726, 147 O.R. (3d) 497, and in
R. v.
    Hartling
, 2020 ONCA 243, 150 O.R. (3d) 224, that it is settled law that
    the only remedy for a s. 11(b) violation is a stay of proceedings.

[48]

For these reasons, this argument too must fail,
    and I would not permit the Crown to advance its proposed remedy on this appeal.

(3)

The Crowns Proposed Remedy

[49]

Even if the Crown were permitted to raise the
    issue of remedy on appeal, I am not persuaded by its proposed remedy. The Crown
    proposes that a stay should be granted only if the accused could satisfy the
    following test, modified from the abuse of process context as explained in
R.
    v. Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32:

1.

There must be actual prejudice to the accuseds interests protected
    by s. 11(b) that will be manifested, perpetuated or aggravated by
    continuing the proceedings beyond the limits of permissible delay;

2.

There must be no other remedy capable of redressing this prejudice;
    and

3.

If there is still uncertainty over whether a stay is warranted, the
    court is required to balance the interests in favour of granting a stay against
    the interest that society has in having a final decision on the merits.

[50]

The Crown contends that this approach would not
    re-inject the concept of prejudice into the s. 11(b) analysis but simply aligns
    with nearly every other legal test for assessing and remedying a
Charter
violation
    by balancing individual and societal interests.

[51]

I do not agree. The difficulty with this
    proposition is that it does in fact re-inject prejudice into the s. 11(b)
    analysis in a manner that invites uncertainty. On the matter of actual
    prejudice, the court in
Jordan
noted, at para. 33, that actual
    prejudice can be quite difficult to establish, particularly prejudice to
    security of the person or fair trial interests. It is not clear how the
    Crowns proposed test for a stay would not re-introduce this difficulty and
    place an added burden on the accused. Furthermore, considering the Supreme
    Courts statement in
Jordan
, at para. 54, that presumed prejudice
    resulting from unreasonable delay is not a rebuttable presumption in the s.
    11(b) breach analysis, it seems to me counterproductive to require an accused
    to show actual prejudice in order to vindicate the violation of their s. 11(b)
    right.

[52]

The presumption is that the accused will have
    suffered prejudice to their rights to liberty, security of the person, and fair
    trial interests. Notwithstanding the Crowns submissions, I cannot see how
    continuing a trial that has become presumably unfair, with the addition of
    discrete remedies, reverses or cures the unfairness that was suffered.

[53]

The Crown submits their approach would encourage
    accused persons to seek remedies before or immediately when delay becomes an
    issue or crystallizes. However, it is not clear how an accused person would
    establish that they are entitled to a remedy for delay that has not yet become
    presumptively unreasonable, particularly if there is no appropriate remedy
    other than a stay.

[54]

One can think of a hypothetical situation in
    which an offender is charged with a serious violent or personal injury offence.
    If they were to bring an application for a remedy before presumptively
    unreasonable delay, relaxed bail conditions may not be in the interest of
    public safety. Furthermore, having not been convicted yet, enhanced pre-trial
    custody credit and reduced sentence are equally unavailable. Similarly, an
    order to expedite the proceedings may be frustrated by institutional
    constraints or constraints of the proceeding, such as where there is a
    co-accused. This situation would only create more difficulties in terms of
    predictability and consistency.

[55]

Therefore, I find that the Crowns proposed
    remedy does not present a workable alternative to a stay of proceedings.

(4)

Disposition of this Ground of Appeal and Concluding
    Remarks

[56]

For the foregoing reasons, I would dismiss the
    Crowns fresh evidence application and allow the appellants appeal. Both
    parties concede that there was a s. 11(b) breach, and I would not give effect
    to the Crowns request that this court impose a remedy other than a stay. A
    stay of proceedings is the appropriate and only available remedy.

[57]

Before concluding, I am compelled to address
    some of the language used in the Crowns factum. The role of the Crown in
    criminal proceedings has been long established: it must execute its duties
    ardently but fairly and in a balanced manner. The Crowns case must be
    presented firmly and pressed to its legitimate strength but it must also be
    done fairly:
Boucher v. The Queen
, [1955] S.C.R. 16, at p. 24.

[58]

In the present case, the language of the Crown
    in some instances exceeded this responsibility in a pejorative manner. In its
    factum, the Crown describes the issuance of stays under
Jordan
as
    automatic judicial guillotines, without any nuance or balance, giving the
    guilty a windfall and the innocent a brushoff and depriving society of the
    truth. The Crown also criticizes the remedy as an abdication of justice.

[59]

In my view, these are not fair characterizations
    of
Jordan
and the remedy for unreasonable delay, and the language used
    by the Crown goes beyond a mere difference in opinion. A stay of proceedings
    under
Jordan
does not issue as of right once the presumptive ceiling
    has been breached. At that point, the onus shifts to the Crown to rebut the
    presumption of unreasonableness on the basis of exceptional circumstances:
Jordan
,
    at para. 105. This is uncontroversial. This approach allows for the nuance and
    balance which the Crown mistakenly argues is missing. The Crowns description
    of stays in such instances as automatic judicial guillotines is extreme and
    inappropriate.

[60]

It is true that a stay of proceedings precludes
    a case from being determined on its merits and that this may benefit an accused
    person while also harming the victims of a crime. However, the Crowns
    presentation is not fair in that it is one-sided. Neither is it just to the
    accused (who is presumed innocent), the public, or to the victims to allow a
    case to continue past reasonable delay, with the tepid comfort of interim
    measures. The
Jordan
framework is cognizant of this tension: see
Jordan
,
    paras. 19-28. The framework accounts for a balanced approach in the assessment
    of unreasonable delay; however, once that delay becomes unreasonable, there
    must be finality to the proceedings through a stay. The spirit of a stay of
    proceedings for unreasonable delay is not to give innocent parties the
    brushoff or unnecessarily deprive the public of the truth, but rather to
    uphold public confidence in the administration of justice through a careful and
    intentional framework.

[61]

I want to be clear: counsel should not be
    discouraged or deterred from bringing critical perspectives of the
    administration of justice before the courts. Critical perspectives form part of
    a healthy justice system. Those critiques, however, must be advanced in a
    manner that is fair and is not needlessly incendiary. In my view, the Crowns
    factum in this matter failed to achieve this balance.

[62]

Though my determination of the s. 11(b) breach
    is dispositive of this matter, for completeness I will next address the
    appellants arguments respecting the trial judges
W.(D.)
analysis as
    well as the sentence appeal.

THE
W.(D.)
ANALYSIS

[63]

The appellant submits that the trial judge erred
    in his
W.(D.)
analysis by using his rejection of the appellants
    testimony as positive evidence of his guilt. I disagree.

[64]

To substantiate this ground of appeal, the
    appellant highlights two paragraphs in the judges reasons in which the trial
    judge made the following statements:

[71] My rejection of the Defendants
    explanations for the numerous contradictions in his testimony and continuous
    demands for more funds from the Complainant together with the reliable and
    credible testimony and records of the independent witnesses set out in the
    Crown case amounts to proof beyond a reasonable doubt and as stated I find the
    Defendant guilty of Fraud Over.



[83] Given the numerous examples of the
    Defendant asserting fictionalized explanations, I also find that the Defendant
    attempted the same fraudulent fictions on this court.

[65]

The appellant submits that in assessing the
    third branch of
W.(D.)
, the trial judge acknowledged weaknesses in the
    evidence of the complainant, saying that his evidence would fail on any
    reliability assessment standing alone.

[66]

The judges reasons must be viewed as a whole. The
    evidence at trial was based substantially on a credibility assessment of the
viva
    voce
evidence of both the Crowns witnesses as well as the witnesses
    called by the defence. This necessitated the trial judge undertaking a
W.(D.)
analysis, which he did.

[67]

The trial judge first found that the appellants
    evidence was completely discreditable and he did not believe the appellant. He
    then went on to consider the second branch of the test. He found that the
    appellants testimony was constantly shifting and evasive, and it was not
    supported by any evidence presented at trial; as such, he was not left in a
    state of reasonable doubt by it. He finally went on to consider the third
    branch of the test and turned to other evidence to see what, if any, evidence
    he did accept. The trial judge considered the complainants testimony and found
    that it was weak and demonstrated a clear lack of attention to the operation
    and finances of the business. The trial judge further found that while the
    complainants evidence was credible for the most part, it was not reliable. The
    trial judge then looked at the totality of the evidence and concluded that
    there was credible and reliable corroboration to the complainants testimony in
    the cheques he paid to the appellant, the email correspondence between the two
    parties, and the independent witnesses who contradicted the appellants
    testimony with respect to the expenses he claimed were incurred.

[68]

When the judges reasons are viewed
    contextually, it is clear that he correctly applied the
W.(D.)
analysis. I agree with the Crowns submissions that as part of the analysis,
    the trial judge assessed and rejected the appellants evidence before
    separately assessing the evidence that the Crown was relying on. After
    rejecting the appellants evidence, the trial judge stated, [w]hile I reject
    the defendants testimony, I am still left with the question of whether the
    Crown has proven its case beyond a reasonable doubt. Only after this
    conclusion did the trial judge make the determination as to whether the Crowns
    case was proven beyond a reasonable doubt. As such, I see no error in the trial
    judges treatment of the
W.(D.)
analysis.

[69]

Accordingly, I would not give effect to this
    ground of appeal.

THE SENTENCE APPEAL

[70]

The parties agree that the trial judge erred by
    finding that the appellant was responsible to pay back the total amount of the
    fraud of $378,491.60 and by ordering restitution in that amount. They agree
    that the correct amount of the restitution order should have been $189,245.80,
    representing half of the total fraud.

[71]

The appellant further argues that a conditional
    sentence should have been imposed, rather than the 18-month custodial sentence
    he received. At the sentencing hearing, the parties had agreed that a
    conditional sentence was not available based on s. 742.1(c) of the
Criminal
    Code
, R.S.C. 1985, c. C-46. They did not yet have the benefit of this
    courts determination that s. 742.1(c) is unconstitutional and of no force and
    effect:
R. v. Sharma
, 2020 ONCA 478, 152 O.R. (3d) 209, leave to
    appeal granted, [2020] S.C.C.A. No. 311.

[72]

I agree that a conditional sentence was
    available but defer to the trial judges decision not to grant it. The trial
    judge explicitly considered this option and held that it would not sufficiently
    address the principles of deterrence and denunciation. In my view, the trial
    judges misapprehension of the amount of the fraud to be paid back did not
    impact the custodial sentence ordered in a manner that warrants appellate
    intervention: see
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 43-44. The error in the restitution amount did not overshadow the trial
    judges analysis. He properly considered the appropriate sentencing range, the
    principles of deterrence and denunciation, and aggravating and mitigating
    factors.

[73]

I would not give effect to this ground of
    appeal.

CONCLUSION

[74]

The appeal from conviction is allowed on the
    basis of a s. 11(b) violation. I would stay the conviction for fraud over
    $5,000. The remaining grounds of appeal are dismissed.

Released: March 21, 2022 M.T.

M.
    Tulloch J.A.

I
    agree. K. van Rensburg J.A.

I
    agree. I.V.B. Nordheimer J.A.


