



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Villanti, 2020 ONCA 436

DATE: 20200710

DOCKET:
M
51338 & M51432 (C65741)

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant (Responding Party)

and

Vincent Villanti, David
    Prentice, Shane Smith,

Ravendra
    Chaudhary and Andrew Lloyd

Respondents (Moving
    Parties)

Paul Riley, for the moving parties Vincent
    Villanti and Shane Smith (
M
51338
)

Thomas Mathews, for the moving party David
    Prentice (
M
51338
)

Ravendra Chaudhary, acting in person (
M
51338
)

Steven C. White, for the moving party Andrew
    Lloyd (
M51432)

Gregory Tweney, for the responding
    party

Heard: In-writing

Watt J.A.:


[1]

On December 22, 2016, as proceedings at the
    preliminary inquiry foundered, the Deputy Attorney General of Ontario preferred
    an indictment against six individuals. The indictment contained two counts:
    fraud and conspiracy to commit fraud.

[2]

About 19 months later, a judge of the Superior
    Court of Justice stayed proceedings against five of those individuals based on a
    breach of their right to be tried in a reasonable time under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
.
[1]


[3]

The Crown appealed the order staying proceedings
    on the indictment. The notice of appeal was filed in time, but the Crown failed
    to perfect the appeal within the time period required by Rule 18 of the
Criminal
    Appeal Rules
, SI/93-169.

[4]

The individuals who are respondents on the
    appeal by the Crown (collectively, the applicants) seek an order dismissing
    the Crowns appeal for want of prosecution and awarding them costs as a
    consequence of the Crowns conduct.
[2]


[5]

In a separate motion, the applicant Lloyd seeks
    an order under s. 684 of the
Criminal Code
of Canada
, R.S.C.
    1985, c. C-46, appointing counsel if we reject the application to dismiss or
    defer it to the panel hearing the appeal.

[6]

As these reasons explain, I would dismiss the application
    seeking dismissal based on the Crowns failure to prosecute and the application
    for costs. I would allow the applicant Lloyds s. 684 application on the terms
    contained in the draft order filed with the court.

The Background Facts

[7]

The principal application focuses on the conduct
    of the Crown as the appellant in this court, in particular the failure of
    appellate counsel (not Mr. Tweney) to perfect the appeal in accordance with the
Rules
.

[8]

In view of the nature of the application, the
    remedy sought and the conclusion I have reached, a brief overview of the
    allegations contained in the indictment and the procedural history of the
    prosecution will furnish the context essential to this application.

The Allegations

[9]

In essence, the allegations are that the
    applicants conducted and developed an investment program through two related
    firms that raised over $13 million from investors. The promise was that the
    investments would be used to provide small businesses with start-up capital. Investors
    were told that they would be able to claim any losses incurred by these
    businesses against their personal income taxes.

[10]

The prosecution alleged that few, if any, of the
    promised investments were made. Instead, the investments were used to pay
    commissions, salaries and expenses of the applicants and their companies.
    Investors were told of inflated losses. But when the investors claimed those
    losses on their personal tax returns, the Canada Revenue Agency (CRA) rejected
    their claims. In the result, the investors were subject to ongoing assessments.

The First Section 11(b) Application

[11]

Less than one year after the preferment of the
    indictment and shortly before the scheduled trial date of September 25, 2017,
    the applicants sought a stay of proceedings under s. 11(b) of the
Charter
.

[12]

The motion judge dismissed the application: 2017
    ONSC 7130. Among other things, the judge found significant defence delay in the
    Ontario Court of Justice and some further delay in the Superior Court of
    Justice. Although the delay exceeded the presumptive ceiling of 30 months, the
    judge was satisfied that it was justified by the particularly complex nature of
    the case, the efforts of the Crown to mitigate delay and the transitional
    exceptional circumstances exception: see
R. v.
Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631.

The Second Trial Date

[13]

Immediately after dismissal of their s. 11(b) application,
    three of the applicants sought and obtained an adjournment of the trial date.
    Each wanted to retain counsel. A new trial date of February 26, 2018 was set.

[14]

About one month before the scheduled trial date,
    the applicant Prentice gave notice that he would be bringing a third party
    records application to obtain records from the CRA. The applicant Smith claimed
    he had several witnesses to call at trial. As a result, the estimate of 12
    weeks for completion of the trial, the applicants contended, would require
    expansion.

[15]

The applicants Smith and Prentice advised the
    supervising judge that they would be bringing a fresh s. 11(b) application at
    the outset of trial.

The Adjournment and Third Trial Date

[16]

On January 25, 2018, the supervising judge
    informed the parties that no judge was available to try the case on the second
    scheduled trial date (February 26, 2018).

[17]

On February 21, 2018, however, the supervising
    judge told the parties that a judge was in fact available.

[18]

Five days later, on February 26, the supervising
    judge announced that, because two judges had become ill, no judge was available
    to preside over the 12-week trial. The earliest date on which a judge would be
    available to do so was January 11, 2019, 11 months later.

[19]

The supervising judge fixed January 11, 2019 as
    the (third) trial date.

The Second Section 11(b) Application

[20]

In April 2018 the applicants filed the materials
    on which they relied to seek a stay of proceedings under s. 11(b). The
    application was heard on June 22, 2018.

[21]

On July 12, 2018, the motion judge entered a
    stay of proceedings: 2
018 ONSC 4259
. She was satisfied the net delay well exceeded the presumptive
    ceiling put in place by
Jordan
.

The Appellate Proceedings

[22]

Proceedings in this court began on August 9,
    2018, when the Crown filed its notice of appeal against the stay of proceedings
    entered by the motion judge. Each of the applicants had been served personally
    with the notice of appeal on August 8, 2018.

The Transcripts

[23]

The transcripts required for the hearing of the
    appeal were available by the time the notice of appeal was filed on August 9,
    2018.

[24]

In September and October 2018, the applicants
    were personally served with the transcripts necessary for hearing the appeal.
    The required number of copies with proof of service were filed with the court
    on October 18, 2018.

The Appeal Books

[25]

On August 13, 2018 the Crown requisitioned the
    original documents and exhibits from the Superior Court of Justice and asked
    that they be sent to the Registrar of this court.

[26]

By mid-November 2018, following some additional
    requests to the Superior Court of Justice, the Crown had obtained all documents
    required to prepare the appeal books. On November 30, 2018 the Crown filed the
    appeal books with this court with proof of personal service on all the
    applicants.

The Appointments of Lawyers


[27]

A Notice of Appointment of Lawyer (NAL) was
    filed on behalf of the applicant Prentice on January 2, 2019. The Crown
    received an NAL for the applicants Smith and Villanti on January 22, 2019, but
    it was not filed with the court until a year later. On January 28, 2020 an NAL
    for the applicant Lloyd was filed.

Perfection of the Appeal

[28]

What remained to perfect the appeal was service
    and filing of the appellants factum. Under the
Criminal Appeal Rules
,
    this was to be accomplished by January 18, 2019. It was not.

[29]

On January 22, 2019, counsel for the applicant
    Prentice sent an email to Crown counsel inquiring about the status of the Crowns
    appeal. Crown counsel responded the next day. He anticipated delivery of the
    appellants factum within two weeks.

[30]

After personal service on four applicants and on
    Mr. Prentices counsel, the Crowns factum was filed on October 31, 2019. It was
    287 days late.

[31]

When counsel for the applicant Prentice received
    the factum, he emailed Crown counsel:

I am not accepting service of the Crown Factum
    sent to my office this morning. The delay is inexcusable, and there was no
    consent to, or acceptable reason for such a delay, especially on an 11(b)
    appeal. This matter was closed a long time ago.

Scheduling the Appeal for Hearing

[32]

About five weeks after the Crown had perfected
    its appeal, the Criminal Appeal Coordinator emailed Crown counsel and counsel
    for the applicant Prentice. The coordinator offered several hearing dates
    during the months of January through April, 2020. She explained that these were
    dates for solicitor appeals. Since most of the applicants were
    self-represented, the coordinator offered to obtain hearing dates for in-person
    appeals so that those who were unrepresented would at least have the assistance
    of duty counsel.

[33]

Crown counsel confirmed his availability on all
    suggested dates except for one in late March.

[34]

The applicants responded and indicated that they
    intended to bring a motion to dismiss the appeal for want of prosecution. This
    motion, they said, should be heard in advance of the appeal. They offered some
    dates for the hearing of their motion and one or two dates in May 2020 for the appeal
    itself, if their motion failed. They rejected Crown counsels suggestion that
    the motion and appeal should be listed for hearing on the same day before the
    same panel.

The Applications

[35]

The applicants seek an order dismissing the
    appeal based on the Crowns failure to perfect it in accordance with the
Rules
.
    They also ask us to award them costs regardless of their success on their main
    application. In a separate motion, the applicant Lloyd seeks an order
    appointing counsel to act on his behalf in the event that the appeal is listed
    for hearing.

[36]

The applicants have filed material in support of
    the orders they seek. In large measure, these materials describe the
    consequences that the original prosecution and the outstanding appeal have had
    upon their lives and livelihood, including those of their families. They
    catalogue their loss of reputation and professional accreditations and the
    difficulties they have faced in attempting to obtain remunerative employment
    commensurate with their qualifications, interests and experience.

[37]

In some of their materials, the applicants
    allege malice on the part of Crown counsel who initiated and has carriage of
    the appeal. They characterize his conduct as scandalous, irresponsible, and
    demonstrative of a callous disregard for the presumption of innocence.

[38]

The applicants materials do not contain
    documentation of any requests to the Registrar or the Criminal Appeal
    Coordinator to have the appeal listed in status court or purge court to address
    the delay and set a firm deadline for perfection. Counsel for the applicant
    Prentice made one inquiry of Crown counsel on January 22, 2019, four days after
    the perfection deadline. Advised then that Crown counsel anticipated perfection
    within two weeks, the next documented contact was the date on which counsel was
    served with the Crowns factum, over nine months later.

[39]

The Crowns application record includes an
    affidavit and various attachments from the legal assistant to Crown counsel responsible
    for the appeal. It recounts the initiation of the appeal; the completion of the
    appeal books and factum; the dates upon which counsel for the various
    applicants filed their NALs; the efforts of the Criminal Appeal Coordinator and
    Senior Legal Officer to list the appeal for hearing; and the applicants
    insistence in proceeding with this application.

[40]

The Crowns application record contains no
    explanation for the delay in perfection.

The Arguments on the Application to Dismiss

[41]

The applicants say this appeal should be
    dismissed for failure to perfect in accordance with the
Rules
. The delay
    of more than nine months is lengthy. This is an appeal from a stay of
    proceedings under s. 11(b) for delay. Crown counsel with carriage of the appeal
    did not seek consent or other indulgences from the applicants or their counsel,
    nor did he seek an extension of time for perfection. The delay is unexplained.

[42]

In this case, the applicants contend, the
    unexplained lengthy delay in perfection, combined with a delay found to be constitutionally
    offensive in bringing them to trial, reflects a marked and substantial
    departure from the institutional obligation of the Crown such that it betrays
    an animus towards the applicants and amounts to an abuse of process. The remedy
    required is not only dismissal of the appeal, but also an award of costs to
    each of the applicants.

[43]

The respondent Crown accepts its institutional
    responsibility to ensure timely perfection of appeals it commences. It
    acknowledges its enhanced onus to comply with the
Rules
and its abject
    failure to do so in this case. It concedes that no explanation has been
    provided for the delay, and further that none offered now could possibly
    justify its default.

[44]

But, the Crown continues, neither the length of
    the delay, the absence of an explanation, nor the nature of the appeal itself 
    even considered together  sustain the applicants allegations of malice,
    nefarious motives, unacceptable negligence or sheer incompetence.

[45]

The respondent points out that the applicants
    advance their claim based on the residual category of the abuse of process doctrine.
    To succeed they must show that permitting the appeal to be heard on its merits
    would undermine the integrity of the judicial process.

[46]

This standard, the respondent contends, has not
    been met.

[47]

First, the applicants themselves have been
    dilatory in responding to the appeal. Four of them were not represented by
    counsel until three months after the appeal had been perfected. None sought, at
    any time during the nine-month period before perfection, to have the case
    listed in status court or purge court. What is more, they declined the courts
    offer  made first by the Criminal Appeal Coordinator, then by the Senior Legal
    Officer  for an early hearing date. They also rejected a Crown suggestion that
    their motion and the appeal be listed on the same day before the same panel, a
    procedure which has been followed in previous cases.

[48]

When all the circumstances are considered, the
    respondent says, they cannot sustain a finding of abuse of process nor any
    other basis upon which this appeal should be dismissed without a hearing. There
    is no evidence of malice, animus or nefarious motive. The respondents did not
    utilize procedures available under the
Rules
or Practice Directions to
    have the case listed in either status court or purge court. The respondents caused
    further delay by rejecting appeal hearing dates offered in January through
    April 2020, and dates that combined their application with a hearing on the
    merits.

[49]

In addition, the respondent emphasizes the
    magnitude of the alleged offences. An unlawful agreement to defraud the public.
    Executed over an extended time. And resulting in proceeds of $13 million for
    the applicants own purposes, rather than those promised to investors. The
    legal issues involved are important. Society has a significant interest in the
    trial of this case which can only be vindicated by permitting the appeal to
    proceed. The stress and uncertainty of which the applicants complain
    pre-existed the delay in perfection. It has been exacerbated in part by the
    applicants own failure to pursue available remedies to achieve an earlier
    determination of their motion or of the appeal itself.

[50]

The respondent also rejects the applicants
    claims for costs. Since the principal application (to dismiss the appeal)
    should fail, the same result should follow on costs. Indeed, even if the main
    application were to succeed, a costs award does not automatically follow.

[51]

Costs awards against the Crown, the respondent
    adds, are rare and not governed by the same principles applicable to civil
    cases. While the delay in perfection was lengthy and unexplained, the
    respondent says it does not amount to a marked and substantial departure from
    the conduct expected of the Crown so as to warrant an award of costs. This is
    especially so in light of the applicants own failures and the basis on which
    their claim for costs is grounded.

The Governing Principles

[52]

The applicants rely on three sources of authority:

i.

the Rules and Practice Directions about
    perfecting appeals and authorities considering those rules;

ii.

the doctrine of abuse of process; and

iii.

the authority to award costs against the Crown in criminal
    cases.


The
Criminal Appeal Rules
and Practice Directions

[53]

Rule 18 of the
Criminal Appeal Rules
governs perfection of appeals.

[54]

One of the steps required to perfect an appeal
    is service and filing with proof of service of the appellants factum. In this
    case, Rules 18(1) and (3) required that service and filing of the appellants
    factum, together with proof of service, be done within 90 days of delivery of
    the transcripts to the court, or such longer period as is permitted by a judge
    or the Registrar.

[55]

Under Rule 20(1), the Registrar may serve notice
    on an appellant who has failed to perfect an appeal within the time limits
    required by Rule 18. The notice advises that unless the appeal is perfected
    within 10 days, it may be placed before a panel of the Court of Appeal to be
    dismissed as abandoned.

[56]

Under Rule 20(2) a respondent may  on notice to
    the appellant  request that the Registrar place the appeal before the court to
    be dealt with in accordance with Rule 20(1). A respondent may also move before
    a judge for directions.

[57]

A panel considering an appeal referred to it under
    Rule 20(1) retains discretion to dismiss the appeal as abandoned or to permit
    it to remain on the list subject to certain conditions including, for example, deadlines
    for filing materials: r. 20(3).

[58]

Rule 20 is not the only means available to a
    respondent to seek dismissal of an appeal that has not been perfected in
    accordance with the
Rules
.

[59]

Under section 9.11 of the Practice Direction
    Concerning Criminal Appeals at the Court of Appeal for Ontario (March 1, 2017),
    counsel for a respondent may request that an appeal be spoken to in status
    court or purge court. The request may be made by emailing the Criminal Appeal
    Coordinator on notice to the opposing party and providing mutually convenient
    appearance dates. Status court is held once every month. Purge court is
    scheduled bi-monthly.

[60]

A single judge presides in status court.
    Depending on the circumstances, the presiding judge will set a time limit for
    perfection, failing which the appeal may be referred to purge court. There, a
    panel of three judges may dismiss the appeal as abandoned.

[61]

Under Rule 19, a respondent, as a party to an
    appeal, on notice to the appellant, may make a motion to a judge for directions
    about the conduct of the appeal.

[62]

Few authorities have considered the standard to
    be applied, or the circumstances in which an appeal may be dismissed as
    abandoned for failure to perfect in accordance with the
Rules
. However,
    some factors considered by courts include:

i.

the length of the delay beyond the perfection
    deadline;

ii.

any explanation for the delay;

iii.

the steps taken, if any, by the respondent on
    appeal to ensure timely perfection;

iv.

the effect of delay on the respondent;

v.

the significance of the issues on appeal to the
    administration of
justice; and

vi.

the conduct of the delinquent party.

The list is illustrative, not
    exhaustive: see
R. v. Sheng
, 2010 ONCA 296, 254 C.C.C. (3d) 153, at paras. 56-60;
R. v. Jourdain
(2001), 150 O.A.C. 314, at paras. 10-11; and
R. v. Mercer
, 2005 NLCA
    10, 194 C.C.C. (3d) 370, at paras. 63-67.

The Doctrine of Abuse of Process

[63]

The applicants also enlist the residual category
    of the abuse of process doctrine.

The essence of this application is the
    Crowns failure to perfect the appeal in accordance with the
Rules
. The
    remedy sought  dismissal of the appeal for non-compliance  is available under
    the
Rules
. It is neither necessary nor desirable to consider the doctrine
    of abuse of process to determine the outcome of this application. In these
    circumstances, I propose to say nothing more about the principles that underpin
    the doctrine or their application to this case.

Costs Against the Crown

[64]

Although used sparingly prior to the advent of
    the
Charter
, superior courts have always possessed the inherent
    jurisdiction to award costs against the Crown:
R. v. 974649 Ontario Inc
.,
    2001 SCC 81, [2001] 3 S.C.R. 575, at para. 80.

[65]

Unlike in civil cases where costs are awarded to
    partially indemnify a litigant, to encourage settlement, to deter frivolous
    proceedings and to discourage unnecessary steps, different considerations apply
    in criminal proceedings. Unlike an ordinary litigant, the Crown does not win or
    lose cases. Rather, the Crown conducts prosecutions and makes decisions about
    those prosecutions in the public interest. Costs are not usually deployed to
    influence the conduct of litigation:
R. v. Singh
, 2016 ONCA 108
, 129 O.R. (3d) 241,
at paras. 51-52. See also
R. v. Ciarniello
(2006), 81 O.R. (
3d) 561 (C.A.), at paras. 32-33, leave to
    appeal refused, [2006] S.C.C.A. No. 424;
R. v.
Robinson
, 1999 ABCA 367, 142 C.C.C. (3d)
    303, at para. 29.

[66]

The standard to obtain a costs award against the
    Crown is stringent. The party seeking the award must demonstrate a marked and
    unacceptable departure from the reasonable standards expected of the
    prosecution. Typical descriptions reflective of the departure required are oppressive
    or improper, remarkable or reprehensible:
R. v. Fercan Developments
    Inc
., 2016
ONCA 269, 130
    O.R. (3d) 321, at paras. 72, 74 and 76;
Singh
, at para. 40.
Mere negligence on the part of the Crown does not constitute a
    flagrant or marked departure from the norm:
Singh
, at paras. 33, 40.

[67]

In determining whether this standard is met, inaction
    on the part of the defence is a relevant factor:
Singh
, at para. 41;
Sheng
,
    at para. 60.

The Principles Applied

[68]

As I will explain, I would not dismiss the
    appeal for want of compliance with the
Rules
. Nor would I award costs
    against the Crown. I will consider each claim in turn.

Non-Compliance with the
Rules


[69]

First, the authority invoked.

[70]

Whether considered individually or in combination,
    neither the
Criminal Code
, the
Criminal Appeal Rules
nor any Practice
    Direction of this court create a bright line rule that failure to perfect an
    appeal within the time limits prescribed by the
Rules

requires
dismissal of the appeal. Rather,
    the ultimate remedy for non-compliance is for a panel of the court to decide.

[71]

Illustrative of the discretionary nature of the
    courts authority and of the remedies available is Rule 20, which may be
    invoked on the Registrars own motion, or at the request of the respondent.
    Among the remedies available are dismissal of the appeal as abandoned or an
    order that the appeal remain on the list, subject to such conditions as the
    court considers fit to complete perfection.

[72]

The discretionary nature of our remedial
    authority requires us to consider all the circumstances to determine whether
    the interests of justice favour dismissal or some lesser measure as the remedy.

[73]

Second, the length of the delay.

[74]

Although the appeal was commenced within the
    prescribed time and the transcripts and appeal books served on each applicant
    and filed with the court punctually, the appellants factum, due on January 18,
    2019, was not filed until October 31, 2019.

[75]

The delay in perfection was clearly excessive. As
    appellate records go, the record in this case was not lengthy. There was no
    trial. When the notice of appeal was filed, Crown counsel had available all the
    relevant transcripts, and access to the record before the motion judge. The
    appeal books were served and filed by the end of November 2018. The issues
    raised were the subject of recent jurisprudence from the Supreme Court of
    Canada and clearly defined.

[76]

Further, the appellant in this case is the
    Crown, a party with significant institutional resources and a corresponding
    obligation to bring those accused of crime to trial in a reasonable time. That
    institutional obligation, no one would seriously contest, extends to the
    pursuit of appellate proceedings  all the more so where the appeal is from an
    order staying proceedings for unreasonable delay. Counsel with carriage of the
    appeal is a senior member of the Crown Law Office with decades of experience in
    this court and must be taken to have been aware of the requirements for
    perfection.

[77]

Third, the explanation for the delay.

[78]

The record does not reveal any explanation for
    the delay. Counsel who initiated the appeal and maintained carriage of it until
    perfection has provided no explanation. Equally absent is any indication of
    whether reassignment of carriage of the appeal was considered as the months
    without perfection accumulated. It is a reasonable inference that no
    explanation was provided because none is reasonably available.

[79]

The applicants suggest, in some of their
    materials, that the delay resulted from an oblique or nefarious motive on the
    part of Crown counsel. No evidence in the record supports this assertion. Nor
    is there any evidence to support a conclusion that lack of timely perfection is
    a systemic problem in the Crown Law Office - Criminal.

[80]

Fourth, the steps taken by the respondent to
    ensure timely perfection.

[81]

As noted, any respondent to an appeal that has
    not been perfected in accordance with the
Rules
has several options
    available under the
Criminal Appeal Rules
and current Practice
    Direction. For example, under Rule 20(2) a request may be sent to the Registrar
    to have the appeal placed before a panel of the court to be dismissed as
    abandoned unless perfected within ten days of service of the notice.

[82]

None of the applicants made any such request.

[83]

Under Rule 19, a respondent may seek directions
    from the chambers judge. This judge may refer the appeal to a panel for
    dismissal or set a deadline for perfection.

[84]

None of the applicants invoked Rule 19.

[85]

Under section 9.11 of the courts Practice
    Direction, a respondent may email the Criminal Appeal Coordinator and ask that
    an appeal be listed in status court or purge court. During the nine-month
    period between the perfection date and actual perfection, there were nine
    status courts and at least four purge courts.

[86]

None of the applicants sought this assistance.

[87]

In his affidavit filed in support of this
    application, the applicant Prentice deposed that his counsel:

occasionally checked with court staff during
    the summer and early fall of 2019 as to the status of the appeal and any
    filings or explanation from the Crown. Court staff reported no movement on the
    appeal, and were themselves confused as to why the appeal was still pending
    despite failure to perfect. Furthermore, they were puzzled as to why the matter
    was not brought before status court or dismissed for delay.

[88]

Setting to one side the hearsay nature of this
    information and the failure to identify court staff to whom the remarks are
    attributed, it beggars belief why counsel did not pursue the rudimentary steps
    necessary to have the appeal brought before status court or dismissed for
    delay.

[89]

Around five weeks after perfection, the Criminal
    Appeal Coordinator and Senior Legal Officer offered hearing dates for the
    appeal commencing in the first quarter of 2020. The majority of the applicants
    had not yet retained counsel. Those who had rejected the dates offered. They
    sought a date for their motion to dismiss well in advance of any date fixed for
    the hearing of the appeal. They rejected the suggestion that the motion and
    appeal could be listed on the same date before the same panel.

[90]

It is difficult to avoid the inference from the
    applicants conduct that they were content to let sleeping dogs lie in the hope
    that the Crowns appeal would expire of old age.

[91]

The interests of justice are not well served if
    appeals to this court are not commenced, perfected, listed for hearing, heard
    and decided expeditiously. This ensures that the principles of finality and
    reviewability are respected and that if proceedings are returned to trial
    courts, the evidence remains available and not unduly separated from the events
    the witnesses describe.

[92]

This court takes seriously its obligation to
    manage its inventory so that appeals are heard and decided as expeditiously as
    circumstances permit. On an institutional level, in a court that decides around
    1000 cases each year, we cannot be expected to have intimate familiarity with
    the status and circumstances of every outstanding appeal. Sometimes, despite
    our best efforts, a perfection deadline is missed. We rely on counsel on both
    sides of an appeal, who are much more familiar with the status and progress of
    their cases than are we, to advise us about failures such as occurred here.
    Inaction is not an option.

[93]

Our
Rules
and Practice Directions make
    clear the steps to perfect an appeal as well as timelines for completing each
    step. We cannot allow a culture of complacency to take root and flourish here
    else it will have an effect not unlike that which the Supreme Court of Canada described
    in
Jordan
.

[94]

As an institution, we provide several vehicles
    to ensure timely perfection, listing, hearing and decision in outstanding
    appeals. Status court. Purge court. Motions for directions. Case management. We
    expect counsel engaged in appellate practice to cooperate with one another and
    to invoke these available mechanisms to ensure that justice is delivered in an
    efficient, timely and fair way. This is not a big ask.

[95]

Fifth, the effect of delay in perfection on the
    applicants.

[96]

It is beyond controversy that untimely
    perfection of the Crowns appeal prolonged the stress and uncertainty
    occasioned by the mere fact that an appeal was taken and the prospect of trial
    proceedings as a potential outcome. On the other hand, some stress and
    uncertainty would equally have resulted even with timely perfection.

[97]

The delay in perfection had no impact on the
    applicants liberty. They are not subject to any form of judicial interim
    release. Their ability to respond to the appeal has not been diminished or
    compromised by the delay in perfection. Nor has the delay had any effect on any
    sanctions which may have been imposed on them in any separate regulatory
    proceedings. On the issue of prejudice, eloquent by its absence is any attempt
    by the applicants to invoke our jurisdiction to dismiss the appeal until
    advised by the Criminal Appeal Coordinator and Senior Legal Officer of dates
    available for a hearing of the appeal on its merits.

[98]

Sixth, the significance of the issues on appeal
    to the administration of
justice.

[99]

The allegations in this case are of a serious
    fraud of a significant magnitude. The issues raised, while narrow, are
    important.

[100]

Finally, balancing the competing interests.

[101]

This appeal was not perfected in a timely way. The failure is
    unexplained, perhaps unexplainable, especially where the order under appeal is
    a stay of proceedings for unreasonable delay. The failure is that of the Crown,
    a party with institutional obligations to ensure that all phases of a criminal
    prosecution, including appeals from decisions in courts of first instance, are
    brought to a timely conclusion. The record on which the appeal is based is not
    substantial. The issues raised are the subject of recent and authoritative
    precedent. The institutional nature of the Crown appellant left options for
    timely completion, such as reassignment of the appeal, available but not taken
    up. The overtime period was substantial, but not egregious.

[102]

On the other hand, the applicants inaction is telling. An
    intemperate email within days of the perfection date. Next heard from when
    perfection occurred. And then, despite his obligations as counsel of record, an
    immoderate purported refusal to accept service of the factum on behalf of his
    client. In the interim, no requests to have the appeal listed in status court.
    Or in purge court. Or to be case managed. Or for directions.

[103]

Within weeks of perfection, the parties were offered several dates
    for a hearing of the appeal on the merits in the first quarter of this year. By
    then, other applicants had retained counsel, although only one had filed an NAL.
    The applicants, through counsel, rejected dates offered for hearing the appeal
    on the merits. The appeal management judge directed that their motion to
    dismiss the appeal as abandoned be heard first, in advance of any hearing on
    the merits. They filed their motion record three months after perfection of the
    Crowns appeal.

[104]

Given the severity of the allegations against the applicants, the
    issues raised on appeal are important. They are deserving of adjudication.

[105]

On balance, I am not persuaded it is in the interests of justice to
    impose capital punishment for Crown counsels failure to perfect the appeal in
    accordance with the
Rules
. But that remedy remains available in
    appropriate cases. As at the trial level, inaction has its price:
R. v.
    Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 32-33.

[106]

Something must be said about certain materials filed on behalf of
    the applicants in support of their motion.

[107]

In the affidavit of the applicant Prentice, presumably drafted with
    the assistance of his counsel who acted as the commissioner and provided information
    to the affiant, Crown counsel was characterized in a number of ways:

·

completely oblivious to, or could care less
    about, the proper timelines for perfecting an appeal

·

that seem to value their cottage time over
    court deadlines  and [the] presumption of innocence

·

demonstrated his arrogance and disreputable
    nature

·

demonstrative of [counsels] pettiness [and]
    unprofessional nature

·

behaviour unbecoming of a Crown Attorney, and
    potentially demonstrative of the malice that the Crown has in their conduct
    towards me

·

I suspect there is no acceptable explanation
    other than negligence, incompetence, and/or outright malice towards me

[108]

In his affidavit, the applicant Smith describes the Crowns conduct
    as scandalous and irresponsible, demonstrative of a callous disregard for
    the presumption of innocence.

[109]

These characterizations of the conduct of the Crown and of Crown
    counsel with carriage of the appeal appear to be founded on two events:

i.

the initiation of an appeal by the Crown from
    the stay entered by the motion judge; and

ii.

the failure of Crown counsel to perfect the
    appeal in accordance with the
Rules
, including the failure to seek the
    indulgence of counsel for the applicants or an order of the judge of this court
    to extend time for perfection.

[110]

Section 676(1)(c) of the
Criminal Code
grants the Crown a
    right of appeal against a trial court order that stays proceedings on an
    indictment. Similarly, s. 676(1)(b) authorizes a Crown appeal against an order
    of a superior court of criminal jurisdiction that in any manner refuses or
    fails to exercise jurisdiction on an indictment. Leave to appeal is not
    required.

[111]

Exercise of a statutory right of appeal, without more, cannot
    sustain a claim of nefarious or oblique motive on the part of counsel who initiates
    or has carriage of an appeal. Simply put, it cannot support Prentices claims
    of arrogance, pettiness, malice or an unprofessional nature.

[112]

The same may be said of the Crowns failure to perfect the appeal
    within the time limit prescribed by the
Rules
. Crown counsel with
    carriage of the appeal must wear the lengthy and unexplained delay in
    perfection, together with his failure to communicate with counsel opposite or
    the court to seek an extension of time. But these failures, alone or in combination,
    do not rise to the level of the vituperative language of the applicant
    Prentice.

[113]

Impeachment of the integrity of counsel opposite  in particular,
    the attribution of essentially corrupt motives without any, let alone a
    sufficient evidentiary foundation  is irresponsible advocacy, unworthy of a
    member of the Ontario bar. As stated in the Rules of Professional Conduct, part
    of the lawyers duty of courtesy is to 
avoid
    ill-considered or uninformed criticism of the competence, conduct, advice, or charges
    of other legal practitioners:
Law
    Society of Ontario,
Rules of Professional Conduct
, Toronto: Law Society
    of Ontario, 2000 (as amended), ch. 7, s. 7.2
. The
    allegations made in this case are all the more inappropriate given counsels
    own lengthy period of inaction.

Costs Against the Crown

[114]

The applicants claim for costs depends upon their success in
    establishing that the failure of timely perfection constitutes an abuse of
    process. As I have explained, that claim fails. The ground on which this claim
    for costs rests has collapsed underfoot. Likewise, the application.

[115]

The unexplained delay in perfection of nine months reflects
    negligence on the part of counsel with carriage of the appeal. The delay is
    antithetical to the institutional obligation of the Crown to ensure timely
    conduct of its litigation. However, there is no evidence that the failure is
    systemic in origin, reflects malice, or is the product of any oblique or
    nefarious motive. The conduct here falls short of a marked and substantial
    departure from the reasonable standards expected of the prosecution.

[116]

Second, a relevant consideration in determining whether the default
    in this case amounts to a marked and substantial departure from the reasonable
    standards expected of the prosecution is the response of the defence. In a
    word, inaction. For all practical purposes, nothing, until three months after
    perfection when the court began offering dates for a hearing on the merits.

[117]

Third, the applicants request for costs ignores the fundamental
    distinction between cost awards in criminal and civil cases. In criminal cases,
    the purpose of a costs award is not primarily punitive or compensatory, but rather
    to ensure that an accused is not deprived of the opportunity to advance a
    defence because of the cost associated with Crown misconduct. Here, the delay
    in perfection added no costs beyond responding to the appeal, a cost already
    incurred with the filing of the appeal.

[118]

For these reasons, the application for a costs award against the
    Crown fails.

The Section 684 Application of Andrew Lloyd

[119]

Andrew Lloyd is a respondent on the appeal by the Crown. He did not
    participate in the motion to dismiss the appeal. In the event that the appeal
    proceeds to a hearing on the merits, he seeks an order under s. 684 of the
Criminal
    Code
appointing counsel to act on his behalf in responding to the grounds of
    appeal.

[120]

The Crown consents to an order on the terms contained in a draft
    order filed with the court.

DISPOSITION

[121]

I would dismiss the applicants motion in its entirety and direct
    that the appeal be heard at the earliest convenient date. I would also direct
    that the applicants serve and file their factums not later than July 31, 2020.
    If further directions are required, counsel should arrange a conference with
    the appeal management judge.

[122]

I would allow the applicant Lloyds application for the appointment
    of counsel under s. 684 of the
Criminal Code
and grant the order
    requested on the terms contained in the draft order filed with the court.

Released: DD July 10, 2020

David Watt J.A.

I agree. Doherty J.A.

I agree. B.W. Miller
    J.A.





[1]
The sixth person charged resolved his case at the preliminary
    inquiry.



[2]

The respondent Lloyd did not participate in the application
    to dismiss for want of timely perfection.


