



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pavao, 2021 ONCA 527

DATE: 20210722

DOCKET: C68420

Strathy C.J.O., Feldman and
    Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carlos Pavao

Appellant

Jeff Carolin and Nicolas M. Rouleau,
    for the appellant

Matthew Asma, for the respondent

Heard: May 18, 2021 by video conference

On appeal from the
    convictions entered by Justice Anne M. Molloy of the Superior Court of Justice
    on April 30, 2018, with reasons reported at 2018 ONSC 2506, and the sentence
    imposed on August 22, 2018, with reasons reported at 2018 ONSC 4889, [2018]
    O.J. No. 4361.

Sossin J.A.:

OVERVIEW

[1]

On April 24, 2012, the appellant was arrested
    and charged in relation to alleged frauds involving the sale of shares in two gold
    mining companies. The companies were real, but the shares were not. The
    appellant was accused of defrauding ten unsophisticated investors and the public
    out of a combined $1.1 million, contrary to s. 380(1)(a) of the
Criminal
    Code
, R.S.C. 1985, c. C-46. He was also accused of knowingly using a
    forged document, contrary to s. 368 of the
Criminal Code
.

[2]

On April 30, 2018, the trial judge convicted the
    appellant of ten counts of fraud over $5,000, one for each of the ten
    complainant investors, and one count of defrauding the public over $5,000. The appellant
    was acquitted of the forgery charge.

[3]

On August 22, 2018, the appellant was sentenced
    to five years imprisonment and ordered to pay restitution in the amount of $1,100,799,
    with a fine in lieu of forfeiture in the same amount.

[4]

The appellant now appeals his convictions and
    sentence. He argues that his fraud convictions were based on misapprehensions
    of the evidence by the trial judge, leading to unreasonable verdicts and a
    miscarriage of justice. The appellant also contends that the delay in bringing
    him to trial violated his rights under s. 11(b) of the
Canadian Charter of
    Rights and Freedoms
.

[5]

On sentence, the appellant submits that the
    trial judge erred in
ordering
    restitution and a fine in lieu of forfeiture in respect of investor Jeff Fallon
    and his daughter, Nicole, who were not complainants in the case against him.
    The Crown concedes this alleged sentencing error.

[6]

For reasons that follow, I would dismiss the
    conviction appeal, accept the Crown's concession on sentence, and allow the
    sentence appeal.

MATERIAL FACTS & PROCEDURAL HISTORY

(1)

Background

[7]

The appellant emigrated to
    Canada from Portugal in the late 1960s. By 2005, he was a successful businessman
    in control of several companies.

[8]

The appellant first met Sam
    Lawrence in 2001, and soon hired him to work for one of his businesses. Mr.
    Lawrence shared his interest in stock trading with the appellant, who at the
    time had little experience in the stock market. Mr. Lawrence was an avid
    investor and purported to have experience with mining stocks.

[9]

6048382 Canada Inc. (604)
    was incorporated in December 2002. The appellant was the president of 604 and
    had sole signing authority.

[10]

Through 604, the appellant,
    along with a small group of like-minded investors, began to rely on Mr.
    Lawrences investment research and knowledge to make stock trades unrelated to
    this case, particularly in shares of mining companies.

(2)

The alleged frauds and the indictment

[11]

The events giving rise to
    the appellants charges began in 2005, after the appellant purported to sell shares
    in two mining companies, Africo Resources Ltd. (Africo) and Rubicon Minerals
    Corporation (Rubicon), to ten complainant investors. Africo was initially a
    private company owned and operated by Rubicon. However, as of 2006, Africo went
    public and was no longer affiliated with Rubicon.

[12]

The appellant used 604 to
    contract with the complainants for the purchase of the impugned Africo and
    Rubicon shares. The complainants all believed they were purchasing shares offered
    through private placements, meaning sales of stocks to pre-selected investors
    rather than on the open market. However, neither the appellant, Mr. Lawrence,
    nor 604 owned the shares that were purportedly sold to the complainants. All
    the money invested by the complainants, around $1.1 million, was lost.

[13]

The appellant was charged on
    April 24, 2012 in a twelve-count indictment. I will briefly summarize the
    allegations made against the appellant under each count.

The Africo counts

[14]

Count 1 (relating to Africo)
    and count 2 alleged that the appellant defrauded Anthony Vella and Brian
    Kirkwood, respectively, in relation to purchases of Africo shares between 2005
    and 2006.

[15]

Mr. Vella contracted with
    the appellant, acting on behalf of 604, to buy nearly 154,000 Africo shares for
    a total of $275,000 through three separate subscription agreements, executed
    on September 30, 2005 for $100,000; June 28, 2006 for $75,000; and October 20, 2006
    for $100,000.

[16]

Mr. Vella claimed that the
    appellant told him he was buying shares of Africo that the appellant already
    owned, having purchased them through a private placement at a preferred rate.
    According to Mr. Vella, he believed the appellant would hold the shares in
    trust for him.

[17]

Similarly, Mr. Kirkwood
    contracted with the appellant, through 604, to buy around 80,000 Africo shares
    for a total of $140,000 through three subscription agreements, executed on
    January 31, 2006 for $40,000; February 7, 2006 for $30,000; and August 15, 2006
    for $70,000.

[18]

Mr. Kirkwood stated that he
    believed the appellant would buy Africo shares on his behalf. The appellant allegedly
    confirmed that Mr. Kirkwoods shares were to be held by 604 for safekeeping.

[19]

Like Mr. Vella, Mr. Kirkwood
    claimed the appellant told him that the shares he purportedly bought were
    acquired through a private placement. Both Mr. Vella and Mr. Kirkwood gave the
    appellant cheques for these transactions, payable to 604, which were deposited
    into 604s bank account, on which the appellant was the sole signatory.

[20]

The shares Mr. Vella and Mr.
    Kirkwood believed they were buying did not exist. They each lost their entire
    investment.

The Rubicon counts

[21]

Count 1 (relating to
    Rubicon) and counts 3 through 10 alleged that the appellant defrauded nine
    complainants, including Mr. Vella (for a second time) and eight others, in
    relation to sales of Rubicon shares supposedly acquired by 604 through a purported
    $1.5 million private placement in 2007.

[22]

Through 604, the appellant contracted
    with the complainants to sell Rubicon shares for a combined purchase price of
    around $685,000. In fact, the appellant was alleged to have acquired just
    $100,000 worth of Rubicon shares and warrants to acquire further shares worth
    about the same amount, all of which were in his own name and ultimately transferred
    into his personal account. 604 thus held no Rubicon shares whatsoever when the
    purported sales to the complainants were executed. Once again, the complainants
    lost all their money.

The public fraud count

[23]

Under count 11, the
    appellant was further alleged to have defrauded the public by encouraging some
    of the complainants to spread the word and bring in friends and relatives as additional
    investors in the non-existent Rubicon shares.

The forgery count

[24]

Finally, under count 12, the
    appellant was charged with knowingly using a forged email, allegedly in order to
    convince the complainants that he had in fact acquired the Rubicon shares which
    he purported to be re-selling to them.

(3)

The pre-trial applications

[25]

On February 25, 2016, the appellant
    filed an application under s. 11(b) of the
Charter
to stay the prosecution against him due to
    unreasonable delay (the s. 11(b) application). However, due to extenuating
    circumstances, the s. 11(b) application was not heard until October 27, 2017.

[26]

In the meantime, the
    appellant also brought an application to adduce evidence of a third-party
    suspect, Mr. Lawrence (the third-party suspect application). On November 21,
    2017, the third-party suspect application was dismissed.

[27]

On November 27, 2017, the application
    judge released his decision on the s. 11(b) application: 2017 ONSC 6873.
He declined to grant a stay under s. 11(b) based on two
    exceptional circumstances: the complex case exception and, in the alternative, the
    transitional exception contemplated in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.

PROCEEDINGS AT TRIAL AND SENTENCING

(1) The Trial

[28]

The appellants trial by
    judge alone commenced on January 29, 2018. Evidence and submissions were
    completed on February 13, 2018.

[29]

The trial judge found that the ten complainant
    investors were clearly defrauded. Indeed, they believed they were buying
    shares that did not exist.

[30]

Therefore, according to the trial judge, the
    only real issue was whether the appellant knew that the shares purportedly sold
    to the complainants did not exist. The appellant testified that he did not. The
    trial judge stated that if she believed that testimony, or if it caused her to
    have a reasonable doubt, she would have found [the appellant] to be not guilty
    of all counts against him.

[31]

A primary defence theory at trial was that the
    appellant honestly believed his representations to the complainants, namely,
    that he was selling them real Africo and Rubicon shares held by 604.

[32]

In support of this theory, the appellant testified
    that Mr. Lawrence, 604s sole trader, had fed him misinformation and lies. His evidence
    was that Mr. Lawrence had duped him, along with everyone else. The appellants
    core narrative was that Mr. Lawrence surreptitiously misappropriated the complainants
    money before losing it all through bad trades.

The trial judges key findings regarding the
    appellants evidence

[33]

The trial judge rejected this theory, based in
    part on her disbelief of the appellants evidence. She outlined three
    overarching concerns with his testimony.

[34]

First, the trial judge rejected certain aspects
    of the appellants evidence as completely untrue. For example, with respect
    to the appellants claim that Mr. Lawrence had forged his name on some
    documents used in the impugned transactions, the trial judge stated as follows,
    at para. 34 of her reasons:

[The appellant] was the sole signatory on the
    604 bank account . The bank records for that account included a number of
    deposit slips which were executed at the branch, many of which included
    substantial sums of cash being paid to the customer. [The appellant] testified
    that his signature had been forged on many of these documents. He claimed never
    to have noticed this, or any other unusual transactions in his account during
    that period of time. He acknowledged that the bank personnel were very familiar
    with him, and also very familiar with Sam Lawrence, and that the two of them
    did not look remotely alike. There was no possibility that the bank staff would
    have mistaken Sam Lawrence for [the appellant]. Nevertheless, [the appellant]
    maintained that the bank staff had permitted Mr. Lawrence to forge his
    signature and, based on that forged signature, transferred funds between
    accounts and handed over to Sam Lawrence substantial amounts of cash, sometimes
    in the several thousands of dollars, all without even checking with [the
    appellant]. I do not believe that. It defies common sense. It is not plausible.

[35]

Second, with respect to other key evidence, the
    trial judge concluded that the appellant had contradicted himself in several
    respects,
which she found undermined his
    credibility.

[36]

Third, the trial judge found
    some of the appellants other evidence unreliable in light of conflicting
    evidence elsewhere in the record. On this point, she concluded as follows, at
    para. 49:

In many instances, [the appellants] testimony
    is directly contradicted by other witnesses. I am not required to assess the credibility
    of the defence evidence in a vacuum. In some instances, there was
    overwhelmingly strong evidence on a point that contradicted [the appellants]
    evidence. In those circumstances, I am entitled to make adverse findings of
    credibility against [the appellant].

[37]

The trial judge gave detailed reasons for her
    view that the appellants evidence was neither credible nor reliable, concluding
    as follows, at paras. 64-66:

I do not find the evidence of [the appellant]
    to be either credible or reliable. Since I do not believe his version of what
    happened, I must proceed to the next step of the
W.D.

analysis
    and determine whether the defence evidence causes me to have a reasonable
    doubt.

There can be situations in which the trier of
    fact might not actually believe the accuseds version of the facts, but still
    consider that evidence to have raised a reasonable doubt as to his guilt.

This is not such a case. [The appellant] is
    simply not believable. He told many untruths and his entire story, as well as
    many of the details within the story, are simply implausible. There is nothing
    about the defence evidence that raises a reasonable doubt.

[38]

Having explained her assessment of the
    appellants credibility and reliability, the trial judge then examined the
    evidence as a whole with respect to the frauds alleged in counts 1 to 11.

Findings on the Africo counts

[39]

William Cavalluzzo, corporate director of both
    Africo and Rubicon, gave evidence at trial. Mr. Cavalluzzo testified that he
    approached the appellant and Mr. Lawrence in 2004 to invite them to participate
    in a private placement of Africo shares. The trial judge found that the
    appellant and Mr. Lawrence invested $500,000 through 604, in exchange for
    614,401 common shares of Africo.

[40]

At paras. 17-18, the trial judge summarized Mr.
    Cavalluzzos evidence regarding the relevant events that followed:

In 2005, Africo sought to raise an additional
    $5.3 million through a private placement. Again Mr. Cavalluzzo offered
    participation to 604, but this time the offer was declined by 604.
Mr.
    Cavalluzzo also testified that 604 did not participate in a third private
    placement by Africo in 2006
.

Africo went public in 2006. In December 2006,
    604 transferred its Africo shares into its trading account at Blackmont
    Capital. From there, the shares were divided between Mr. Lawrence and [the
    appellant], with [the appellant] receiving 250,000 shares, and Mr. Lawrence the
    remaining 364,401 shares. [The appellant] signed the Direction to Blackmont as
    to the allocation of those shares, as did Mr. Lawrence. [Emphasis added.]

[41]

This sequence of events led the trial judge to
    reject the appellants claim that he honestly believed the funds advanced by
    Mr. Vella and Mr. Kirkwood were transferred to the 604 account to buy actual
    Africo shares. Specifically, she concluded as follows, at paras. 92-94:

It was [the appellant] who approached both
    [Mr. Vella and Mr. Kirkwood] and persuaded them to invest. When they wanted to
    see their shares certificate, or to sell their shares, it was [the appellant]
    who persuaded them to be patient and to wait  Neither of them ever met Sam
    Lawrence.

Notwithstanding the request of both of these
    complainants for their shares, [
the appellant] and Mr. Lawrence took all of
    the 604 shares in Africo and divided them up between themselves
. It is
    clear that [the appellant] did so knowingly and that he did so at a time when
    other investors who were depending on him did not get the shares for which they
    had paid.

I am satisfied beyond a reasonable doubt that
    [the appellant] was dishonest in his dealings with Mr. Kirkwood and Mr. Vella.
    As a result of false representations by [the appellant], both Mr. Kirkwood and
    Mr. Vella were deprived of their entire investment. Based on the whole of the
    evidence, I am satisfied beyond a reasonable doubt that [the appellant] knew
    this to be the case. [Emphasis added.]

[42]

Accordingly, the trial judge convicted the
    appellant on count 1 (relating to Africo) and count 2.

Findings on the Rubicon counts

[43]

The key issue with respect to the Rubicon counts
    was the state of the appellants knowledge regarding a purported $1.5 million
    private placement of Rubicon shares. The appellant testified that Mr. Lawrence
    told him he had personally secured the $1.5 million in Rubicon shares and that
    these were the shares the appellant believed were being sold to the various
    complainant investors through 604.

[44]

Other witnesses and documentary evidence
    indicated that the appellant had been offered only $100,000 in Rubicon shares through
    a 2007 private placement, as well as warrants to buy more shares in the future,
    which he ultimately exercised in 2009 for around $107,000. The trial judge found
    that the appellant had taken advantage of the Rubicon private placement and transferred
    all the Rubicon shares he acquired into his personal trading account. The
    appellant denied knowing how the Rubicon shares ended up in his personal
    account, rather than going to 604.

[45]

After reviewing the evidence of each complainant
    involved in the alleged Rubicon frauds, the trial judge rejected the
    appellants evidence on this issue, stating as follows, at paras. 194 and 200:

It is clear on the evidence that there was no
    opportunity for [the appellant], Mr. Lawrence, or 604 to obtain $1.5 million in
    shares of Rubicon ... I find on the whole of the evidence that the opportunity
    to invest in the Rubicon private placement in March 2007 belonged to the
    collective investments of 604 rather than to [the appellant] personally.
    However, [the appellant] seized this opportunity to keep all the shares for
    himself  I find that it was [the appellant] who engineered this feat.



I am satisfied beyond a reasonable doubt that
    [the appellant] knew the $1.5 million in shares did not exist. If he had not
    acquired that actual knowledge, it can only be because he deliberately chose
    not to confirm this with Mr. Lawrence. He was certainly fixed with sufficient
    knowledge to alert him that these shares could not exist, as there was no
    possible way to acquire them. Knowing that there were no real shares, he
    deliberately encouraged potential investors to turn over thousands of dollars
    for investment.

[46]


Based on the whole of the evidence, the trial judge thus concluded
    that the Crown had established the appellants guilt on the Rubicon counts beyond
    a reasonable doubt.

Findings on the public fraud count

[47]

Finally, on count 11, the trial judge found that
    the appellant had defrauded the public, namely, by putting out the word to
    people to bring in any investors who might be interested in participating in
    the Rubicon private placement.

[48]

This conclusion was based on the trial judges
    findings regarding the appellants dealings with Jeff Fallon. Mr. Fallon was one
    of the small group of investors who purchased stocks in mining companies
    through 604 and Mr. Lawrence. However, the trial judge confirmed that Mr.
    Fallon was not a named complainant in any of the counts before this Court.

[49]

To support convicting the appellant for
    defrauding the public, the trial judge summarized her relevant findings relating
    to Mr. Fallon as follows, at para. 206 and 211:

Jeff Fallon testified that [the appellant]
    told him that if he knew of anyone else who might be interested in investing
    [in Rubicon], to let him know. As a direct result of that invitation, Mr.
    Fallon referred three other people to [the appellant]  all of whom purchased [Rubicon]
    shares. Mr. Fallon also brought his daughter Nicole into the deal, although he
    executed all of the documents on her behalf.



I am satisfied beyond a reasonable doubt that
    this conversation occurred. When issuing that invitation [the appellant] knew
    there were no shares available and any money invested would be seriously at
    risk of being lost. For the same reasons as I have indicated with respect to
    the charges involving specific complainants, this constitutes fraud.
    Accordingly, I find [the appellant] guilty on Count 11.

(2)     Sentencing

[50]

On August 22, 2018, the trial judge imposed on
    the appellant a five-year custodial sentence and an order to pay restitution of
    $1,100,799, with a concurrent fine in lieu of forfeiture in the same amount.

[51]

Notably, in Schedule A to the trial judges
    reasons for sentence, which contained a chart breaking down the amounts owing
    to each individual complainant pursuant to the restitution and fine orders, the
    trial judge included $45,000 in respect of Jeff Fallon & Nicole Fallon.

I
SSUES ON APPEAL

[52]

On conviction, the appellant advances two overarching grounds of
    appeal:

1)

The trial judge materially misapprehended the
    evidence, resulting in unreasonable verdicts on all counts. Specifically, the
    trial judge misapprehended the evidence regarding (a) the amount of Africo
    shares held by 604 at the relevant times, and (b) the appellants involvement
    with the Rubicon shares. Cumulatively, these misapprehensions of evidence resulted
    in a miscarriage of justice.

2)

The application judge erred by refusing to stay
    the appellants charges pursuant to s. 11(b) of the
Charter
. The delay
    in this case exceeded the presumptive
Jordan

ceiling, and neither
    exceptional circumstance applied by the application judge was available because
    (a) this case was not complex, and (b) properly attributed, the total Crown and
    institutional delay exceeded the transitional exception threshold.

[53]

On sentence, the appellant contends that the
    trial judge erred in law by ordering restitution and a fine in lieu of
    forfeiture in respect of Jeff Fallon & Nicole Fallon, who were not named
    as complainants in the indictment. As indicated, the Crown agrees with the
    appellants submission on sentence.

[54]

I
    address each ground of appeal, in turn, below.

ANALYSIS

A.

THE CONVICTION APPEAL

(1)

Did the
    Trial Judge Misapprehend the Evidence?

[55]

This prosecution turned on what the appellant knew regarding the Africo
    and Rubicon shares. The trial judge accepted that the appellant knew his
    dealings with the shares in question would deprive the complainant investors of
    their money.

[56]

The appellant contends that in drawing this conclusion, the trial
    judge erred by (a) failing to adequately resolve material contradictions in the
    Crowns evidence on the purchase of the Africo shares, and (b) relying on
    various unsupported inferences in relation to the Rubicon shares.

[57]

As
    I will explain below, I would not give effect to either submission.

[58]

To
    begin, however, it is helpful to briefly review the governing principles in
    cases where a trial judge is alleged to have misapprehended evidence.

The governing principles

[59]

In
R. v. Vant
, 2015 ONCA 481, 324 C.C.C. (3d)
    109, Watt J.A. summarized, at paras. 108-109, the well-established principles applicable
    when assessing an alleged misapprehension of evidence:

A misapprehension of evidence includes a
    failure to consider relevant evidence, a mistake about the substance of
    evidence and a failure to give proper effect to evidence  Not every
    misapprehension of evidence will vitiate a finding of guilt. The nature and
    extent of the alleged misapprehension and its significance to the verdict
    rendered requires consideration in light of the fundamental principle that a
    verdict be based exclusively on the evidence adduced at trial.

When an appellant alleges a misapprehension of
    evidence, our first task is to consider the reasonableness of the verdict. An
    appellant who establishes an unreasonable verdict is entitled to an acquittal.
    Absent an unreasonable verdict, our task is to decide whether the
    misapprehension of evidence occasioned a miscarriage of justice. An appellant
    who shows that a misapprehension of evidence resulted in a miscarriage of
    justice is usually entitled to have his or her conviction quashed and a new
    trial ordered. If an appellant fails to demonstrate that any misapprehension
    resulted in an unreasonable verdict or produced a miscarriage of justice, he or
    she is then left to persuade the appellate court that the misapprehension
    amounted to an error of law. If the court is convinced of such an error, the
    Crown then bears the burden of showing that there was no miscarriage of justice
    under s. 686(1)(b)(iii). [Citations omitted.]

[60]

In cases where credibility is a key issue, the
    impact of a misapprehension of evidence will be particularly acute. In such
    cases, it is essential that the findings be based on a correct version of the
    actual evidence, as [w]rong findings on what the evidence is destroy the
    basis of findings of credibility:
R. v. Morrissey
(1995), 22 O.R.
    (3d) 514, at p. 541, citing
Whitehouse v. Reimer
(1980), 116 D.L.R.
    (3d) 594 (Alta. C.A.), at p. 595.

[61]

Absent a misapprehension of evidence, it is
    ultimately for the trier of fact to determine what inferences are to be drawn
    from the evidence as a whole and whether the cumulative effect of those
    inferences satisfies the standard of proof required in a criminal case:
R.
    v. Tsekouras
, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 229. As such,
    appellate courts may not interfere with findings of fact made and the factual
    inferences drawn by a trial judge unless those findings and inferences are (i)
    clearly wrong, (ii) unsupported by the evidence, or (iii) otherwise
    unreasonable:
Tsekouras
, at para. 230.

(a)

The alleged misapprehensions on the Africo counts

[62]

With
    respect to the Africo frauds, the appellant argues that the trial judge
    misapprehended the evidence relating to the purchase of Africo shares by 604,
    rendering the verdicts related to those shares unreasonable.

[63]

Specifically,
    the trial judge found that 604 purchased 
614,401
 Africo shares for $500,000,
    at 
$1.75
per share, through a private placement in 2004, at the
    invitation of Mr. Cavalluzzo (emphasis added).

[64]

The
    appellant says the trial judge was mistaken. According to the appellant, 604 did
    invest $500,000 in Africo in 2004, but at
$0.75
per share for a total of
666,667
shares. The appellant says the trial judge thus misapprehended
    how many shares 604 purchased in 2004 and the unit price of those shares.

[65]

Further, whatever
the unit price and lot size was, the
    appellant points out that there was uncontested evidence before the trial judge
    that 604 owned 400,000 shares of Africo as of March 2005. The trial judges key
    misapprehension on the Africo counts, according to the appellant, was in
    failing to consider documentation before her from December 2006 which he argues
    shows that 604 had invested
another
$503,808.82 to acquire an
additional
614,401 Africo shares, at $0.82 per share.

[66]

The
    appellant accepts that the entire group of Africo shares documented in December
    2006 was transferred into 604s trading account and then divided between Mr.
    Lawrence and the appellants personal trading accounts.

[67]

However,
    since the appellant urges that 604 made
two
large purchases of Africo shares,
    he contends it was likely that 604 still held the initial 400,000 Africo
    shares it held as of March 2005 when the impugned transactions between 604 and
    the complainants occurred. Since the remaining shares would have been more than
    enough to cover what 604 owed to Mr. Vella and Mr. Kirkwood, the appellant says
    there was a reasonable possibility that he either engaged in
bona fide
transactions with respect to those shares, or
    believed that his representations to the complainants about the shares were
bona fide
. As such, he argues that the trial judges
    misapprehensions of the evidence on this issue rendered her verdicts on the
    Africo counts unreasonable.

[68]

The
    Crown acknowledges that the evidence was ambiguous regarding the details of the
    Africo shares. The ambiguity arose from Mr. Cavalluzzos testimony about 604s
    $500,000 purchase of Africo shares in 2004. Mr. Cavalluzzo recalled that the
    price was $0.75 per share, and that 604 had purchased 400,000 shares for
    $500,000. Mathematically, however, for 604 to have purchased 400,000 shares for
    $500,000 would mean that the price had been $1.25 per share, not $0.75 (nor
    $1.75, as the trial judge stated in her reasons). This transaction was not
    otherwise documented.

[69]

While
    accepting it is possible the trial judge misapprehended the
number
of
    Africo shares originally acquired by 604 in 2004, the Crown says this
    misapprehension, if it occurred, is not material. The Crown asserts that the
    evidence supported the trial judges conclusion that 604 made only one purchase
    of Africo shares and that, by dividing those shares up between himself and Mr.
    Lawrence, the appellant must have known he was defrauding Mr. Vella and Mr.
    Kirkwood.

[70]

The
    Crown rejects the appellants theory regarding the alleged December 2006 transaction.
    In the Crowns submission, the documentary evidence did not, in fact, disclose
    a purchase of
new
shares, but rather a re-issuing of the
same
shares purchased in 2004, now converted into shares of the new corporate entity
    established when Africo went public and split with Rubicon in 2006.

[71]

Ultimately,
    the Crown says that the only reasonable interpretation available to the trial
    judge was that the Africo shares purchased for $500,000 in 2004 were the same
    shares referenced in the documents from December 2006.

Discussion

[72]

I
    accept that there are different plausible ways to interpret the evidence in this
    record. Yet even assuming, without deciding, that the trial judge did
    misapprehend the number and/or unit price of Africo shares acquired by 604 in
    2004, there was evidence to support her key conclusion that this 2004 purchase
    was the only time 604 had acquired Africo shares.

[73]

For
    example, Mr. Cavalluzzo testified that 604 had participated in Africos 2004 private
    placement, investing $500,000. Contrary to the appellants submission before us
    on appeal, Mr. Cavalluzzo stated that 604 had declined to invest in subsequent placements
    in 2005 and, most notably, in 2006. The appellants trial counsel did not challenge
    Mr. Cavalluzzo on this latter point, nor did the appellant assert at trial that
    604 had made two separate purchases of Africo shares, one in 2004 and another
    in 2006.

[74]

Ultimately,
    on the whole of the evidence before her, the trial judge inferred that the
    shares purchased by 604 through the 2004 private placement were the shares distributed
    to the appellant and Mr. Lawrence in December 2006 at the appellants direction.
    As I have explained, this was not a misapprehension; there was evidence in the
    record to support this inference.

[75]

Accordingly,
    I would not interfere with the trial judges findings on this question. In my
    view, any misapprehension about the Africo shares, if it occurred, went to
    detail rather than substance, and was not material to the verdicts on counts 1
    and 2.

[76]

Having
    found that the appellant has failed to establish a material misapprehension of
    evidence relating to the Africo verdicts, I would reject his submission that
    those verdicts were unreasonable.

(b)

The alleged misapprehension on the Rubicon counts

[77]

With
    respect to the Rubicon frauds, the appellant identifies five separate
    inferences drawn by the trial judge which he argues were unsupported by the
    evidence and thus constitute misapprehensions. Collectively, he contends the
    following inferences were erroneous and resulted in unreasonable verdicts on
    the Rubicon counts:

i)

The appellant knew the $1.5 million Rubicon private placement did not
    exist because, had Mr. Lawrence told him that he bought the shares himself, the
    appellant would have been sufficiently suspicious to have inquired;

ii)

The appellant knew the placement did not exist because if he believed it
    did he would have bought additional shares for himself and others;

iii)

The
    appellant knew the placement did not exist because he kept his own $100,000
    investment in Rubicon in a separate personal trading account;

iv)

The
    appellant knew the placement did not exist because he told some investors he had
    bought the shares himself for $1.5 million; and

v)

The appellants after-the-fact conduct showed he knew the placement did
    not exist.

[78]

The
    Crown submits that the appellant is attempting to revisit factual findings with
    which he disagrees, and argues that each of these findings by the trial judge was
    available on the record and entitled to deference on appeal.

Discussion

[79]

Before
    addressing each impugned inference, it is important to note that many of the
    misapprehensions alleged by the appellant are intertwined with the trial
    judges findings on credibility.

[80]

It
    is trite law that a trial judges credibility findings are entitled to a high
    degree of deference. The rationale for this principle was summarized by Watt
    J.A. in
R. v. Wadforth
,
2009 ONCA 716
,
    247 C.C.C. (3d) 466, at para.
66
:

Resolution of credibility controversies is the daily fare of
    trial judges. Assessment of credibility is a difficult and delicate subject,
    often defying precise and complete verbalization. At bottom, belief of one
    witness and disbelief of another, in general or on a specific issue, is an
    alloy of factors, not a purely intellectual exercise  The unique position of
    trial judges to see and hear witnesses, and the inestimable advantage they
    enjoy in the result in assessing witnesses credibility and the reliability of
    their evidence, cannot be squandered by unrealistic expectations of scientific
    precision in language used to describe the complex coalescence of impressions
    that effuse after watching and listening to witnesses and attempting to
    reconcile their renditions of critical events. [Citations omitted.]

[81]

To
    overcome this high degree of deference on the basis of an alleged
    misapprehension of evidence, an appellant must meet the stringent standard of
    showing that the impugned finding or inference played an essential part in
    the reasoning process leading to conviction:
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. I would reiterate that appellate
    interference in the inference-drawing process is not permissible unless the
    appellant establishes the inference drawn was clearly wrong, unsupported by
    evidence, or otherwise unreasonable.

[82]

With
    these principles in mind, I will now examine each complaint raised by the
    appellant in respect of the inferences regarding the Rubicon counts.

(i)

The appellant knew the $1.5 million private placement did not exist because,
    had Mr. Lawrence told him he had purchased the shares himself, the appellant
    would have been suspicious and made inquiries

[83]

The
    appellants evidence is that he told multiple investors he had access to $1.5
    million worth of Rubicon shares through a private placement, based on his
    honest belief that Mr. Lawrence had acquired those shares using his own funds. Documentary
    evidence, however, disclosed that the appellant had personally acquired just $100,000
    worth of shares, while 604 had acquired none.

[84]

The
    trial judge disbelieved the appellants evidence on this issue. She concluded
    as follows, at paras. 47-48:

[The appellant] testified that he was required to be the front
    person for 604 and to have sole control over 604s bank account because Mr.
    Lawrence told him he was having problems with the Canada Revenue Agency and
    could not have a bank account in his name. [The appellant] also testified many
    times that he believed Mr. Lawrence had already acquired the shares in Rubicon
    that they were selling to these various investors. [The appellant] said Mr.
    Lawrence told him he had used $1.5 million of his own funds  to acquire these
    shares. These two strands of evidence are inconsistent. If Mr. Lawrence was
    unable to have any power over a bank account because of his problems with the
    Canada Revenue Agency, how could he have written a cheque for $1.5 million to
    purchase these shares?

Further, [the appellant] maintained that the money paid by the
    investors for their Rubicon shares were [sic] transferred to the 604 trading
    account. That is inconsistent with his evidence that Sam Lawrence had
    fronted the cash for these shares. If [the appellant] had truly believed Mr.
    Lawrence was owed $1.5 million for these shares, he would have expected the
    funds advanced by the investors to repay Mr. Lawrence. [The appellants] insistence
    that the funds were transferred from the 604 bank account to the 604 trading
    account underscores the fact that he must have known Mr. Lawrence was not owed
    $1.5 [million] from these funds and, that being the case, must have known that
    the shares did not actually exist.

[85]

Subsequently,
    the trial judge summarized her finding on this point in the following terms, at
    para. 195:

I do not believe [the appellants] evidence
    that Mr. Lawrence subsequently told him that he had personally acquired another
    $1.5 million in shares. Even if Mr. Lawrence had told him such a thing, [the
    appellant] would have been sufficiently suspicious to have made some inquiries.
    According to [the appellants] own evidence, he believed Mr. Lawrence had no
    access to cash or bank accounts and he also knew that when he had previously
    requested as big a piece of this offering previously, they had been told they
    could have $100,000.


[86]

The
    appellant contends there was no evidence that the appellant believed Mr.
    Lawrence had no access to assets. The appellant further argues that there was
    no reason for the appellant, who allowed Mr. Lawrence to make trades on his own
    personal trading accounts, to become suspicious and make independent
    investigations about these Rubicon shares.

[87]

I
    would not give effect to these submissions. I am not persuaded that this
    inference was clearly wrong, unsupported by evidence, or otherwise unreasonable.
    Rather, this inference flowed from the trial judges well-supported assessment
    of the appellants credibility and the manifest implausibility of his evidence
    regarding Mr. Lawrences finances.

[88]

As
    such, I conclude there is no basis on which to interfere with the trial judges
    conclusion on this point.

(ii)

If the appellant believed the placement existed, he would have purchased
    additional shares for himself or family members or close friends

[89]

The
    trial judge found that it was incomprehensible that if the appellant believed
    Mr. Lawrence had acquired additional Rubicon shares, he would not have
    purchased some for himself or others. She stated as follows, at para. 196:

[The appellant] clearly believed that this
    private placement was an excellent opportunity to make a lot of money. If he
    actually believed that Mr. Lawrence had now managed to acquire another $1.5
    million worth of shares, I find it incomprehensible that he would not have
    purchased any of them for himself or family members or close friends. Instead,
    the only person he personally brought into the Rubicon share purchase was
    Anthony Vella. This was at a time when [the appellant] claimed to have $3
    million in cash and liquid assets and when he felt sufficiently confident in
    the stocks value that he, in effect, grabbed 604s investment opportunity and
    kept it for himself, hived off into his personal account. It is a reasonable
    inference from all of the circumstances that [the appellant] did not put his
    money into this project because he knew the $1.5 million in shares did not
    exist.

[90]

The
    appellant argues that his evidence as to having $3 million in liquid assets
    covered an earlier time period (2005) and not the period of the purported
    Rubicon private placement (2007). The appellant further submits that the sale
    of Rubicon shares to Mr. Vella did represent taking advantage of this
    opportunity for a friend. As such, once again the appellant argues that this
    inference amounts to speculation on the part of the trial judge.

[91]

Again,
    I would reject these submissions. In my view, the trial judge was entitled to
    draw an adverse inference from the fact the appellant did not purchase Rubicon shares
    for himself or others. It was open to the trial judge to disbelieve the
    appellants evidence about his assets, which was inconsistent. Further, the
    only friend he brought in on the Rubicon shares was Mr. Vella, whom by then he
    had already defrauded through the Africo scheme.

[92]

I
    see no basis on which to interfere with this inference by the trial judge.

(iii)

The appellant knew the placement did not exist because he kept his own
    $100,000 investment in his personal trading account

[93]

The
    trial judge found it revealing that the appellant kept his personal shares of
    Rubicon segregated from 604s accounts. Her impugned inference on this point
    was as follows, at para. 197:

I do believe [the appellants] evidence that
    he did this for his own personal security. That is because he knew the other
    trading accounts were being used to do speculative trading on margin with the
    hope of being able to turn a sufficient profit to pay out the investors and
    still have a profit for [the appellant] and possibly Mr. Lawrence.  [The
    appellant] was not prepared to intermingle his safe shares with this project.

[94]

In
    other words, the trial judge believed the appellants evidence that the reason for
    segregating his shares was personal security. However, she inferred that the
    appellant was concerned about securing his funds from the fraud he knew was
    being perpetrated using the other trading accounts.

[95]

The
    appellant now says this inference was not available on the evidence. I do not
    agree.

[96]

In
    my view, there is no basis to interfere with the credibility and factual
    findings of the trial judge on this point.

(iv)

The appellant knew the placement did not exist because he told some investors
    he purchased the shares himself for $1.5 million

[97]

The
    trial judge found as a fact that the appellant had told certain people that he
    himself, and not Mr. Lawrence, had purchased the Rubicon shares he was
    purporting to sell. She relied on this finding in support of her conclusion
    that the appellant knew there were no real shares available for the
    complainants to purchase, noting as follows, at para. 200:

I am satisfied beyond a reasonable doubt that [the
    appellant] knew the $1.5 million in shares did not exist  [The appellant] told
    some of [the] investors that he had himself purchased the shares, including in
    some instances that he had purchased them for $1.5 million. On this issue, I
    accept the evidence of the various complainants who testified to that effect. The
    fact that he would tell others he had purchased the shares is another
    indication that [the appellant] knew that Mr. Lawrence had not done so.

[98]

The
    appellant argues that, given the close partnership between himself and Mr.
    Lawrence, it was not strange or indicative of guilt for the appellant to have
    used imprecise language or to have associated himself with the purchase of
    Rubicon shares. On this point, the appellant highlighted the evidence in the
    record of the close relationship between himself and Mr. Lawrence.

[99]

In
    my view, there is no basis to interfere with this finding.  In this case, the
    requisite evidence was in the record, from several witnesses, to support the
    trial judges finding that she disbelieved the appellant.

(v)

The appellants after-the-fact conduct shows he knew the placement did not
    exist

[100]

The trial judge drew
    the final impugned inference from the conduct of the appellant after the fraud
    came to light, stating as follows, at paras. 201-202:

When things started to come apart, [the appellant] adopted a
    posture of delay and persuasion. He invented various reasons for why shares
    could not be delivered when people requested them and for why investors should
    not cash out when they asked to do so  None of these excuses were true  Ultimately,
     he blamed everything on bad trades by Mr. Lawrence.

When some investors insisted on getting their shares or cashing
    out, [the appellant] persuaded other key investors  to take over their
    positions. It appears that one of the investors (Mr. Laffee) was most
    insistent on getting his money out at an early stage. On December 7, 2007, [the
    appellant] withdrew 283,214 of his own shares in Rubicon and on January 8, 2008
    transferred those shares to Mr. Laffees company  Obviously, there would be no
    reason for him to do that if he thought that persons shares actually existed
    somewhere, or if he was entirely innocent of any wrongdoing in this matter. [The
    appellants] explanation is that he did not know what he was signing. I do not
    believe that story, nor does it cause a reasonable doubt in my mind. I consider
    this transaction to be further evidence of [the appellants] knowledge of the
    nature of the fraud he was perpetrating.

[101]

The appellant contends
    that, while he did arrange for a block of shares to be cashed out, there is no
    evidence to show those shares were the appellants own shares, as opposed to shares
    that had been earmarked for Mr. Laffee within the 604 account.

[102]

I do not accept this argument
    as a basis for a finding of misapprehension of evidence. Rather, as in the case
    of the other impugned inferences, the trial judge considered the evidence
    before her, made credibility findings, and reached factual determinations. I
    would not interfere.

[103]

In a related
    submission, the appellant argues that the trial judge erred in law by failing
    to recognize that after-the-fact conduct has essentially no probative value if
    it is equally explained by or equally consistent with two or more
    offences. For example, the appellant suggests his after-the-fact conduct was
    equally consistent with a belated attempt to cover up the fraud out of a
    concern about civil liability, or by the fact that Mr. Lawrence had continued
    to lie to him.

[104]

I would reject this
    submission, too. In his testimony, the appellant never raised any concern over
    civil liability to account for his actions, so this arguably exculpatory
    inference was not available to the trial judge. Rather, the appellant said he transferred
    his shares out because Mr. Lawrence told him to do so. I have already
    summarized the cogent reasons given by the trial judge for disbelieving the
    appellants evidence with respect to Mr. Lawrence.

[105]

Accordingly, I conclude
    there are no misapprehensions of evidence relating to the Rubicon counts. As
    such, I need not consider the appellants contention that the verdicts on those
    counts were unreasonable.

(c)

The alleged miscarriage of justice

[106]

Finally, the appellant
    contends that the trial judges numerous misapprehensions of evidence infected
    and destroyed the basis of her credibility assessment of the appellant,
    resulting in a miscarriage of justice.

[107]

I do not agree. The
    only potential misapprehension identified by the appellant related to the
    number and unit price of Africo shares purchased by 604 in 2004. I have already
    explained my view that, assuming this was indeed a misapprehension, it was not
    material and did not play an essential role in the verdicts. In my view, there
    is also no error in the trial judges credibility assessment of the appellant.

(d)

Conclusion on the misapprehension of evidence ground

[108]

I am not persuaded
    that the trial judge misapprehended the evidence, or if she did, that it was in
    a material way. As such, I see no basis on which to find any of her verdicts
    unreasonable. Nor, in my view, did any miscarriage of justice occur.

[109]

I turn now to the issue
    of whether the application judge erred in dismissing the appellants
Charter

s. 11(b)
    application.

(2)

Did the Application Judge Err in Denying the s. 11(b) Application?

[110]

On November 27, 2017, the application judge dismissed the
    appellants s. 11(b) application, declining to issue a stay of proceedings due
    to the delay in bringing the appellant to trial.

[111]

Before
    the application judge, the parties agreed that the delay in this case exceeded
    the 30-month presumptive ceiling as set out in
Jordan
.
As such, to resist a stay, the Crown had the onus to establish
    one of two relevant exceptional circumstances: complexity or the transitional
    exception.

[112]

With
    respect to complexity,
the application judge found that the
    amount of disclosure and the length of the preliminary inquiry in this case,
    among other factors, made it particularly complex, concluding that the
    additional time above the
Jordan

ceiling was justified on this
    basis.

[113]

In the alternative, the application judge also found that the
    transitional exception applied. After considering the diligence of each party
    in moving the case forward, as well as the alleged prejudice to the appellant, the
    application judge concluded that the delay was justifiable as a transitional
    case under the framework set out in
R. v. Morin
,
[1992] 1
    S.C.R. 771.

[114]

On appeal, the appellant says the application judge erred by finding
    that the case was particularly complex, when in fact it was straight-forward,
    and by concluding that the transitional exception applied without properly
    attributing the delay in this case, which far exceeded the
Morin
ceiling.

[115]

The Crowns submissions on the s. 11(b) issue focus primarily on the
    transitional exception. The Crowns position on complexity is advanced as an
    alternative argument. As such, I propose to deal with the transitional
    exception first, followed by complexity.

(a)


Does the transitional exception apply in this
    case?

[116]

The net
Jordan
delay in this case was 38.9 months. The parties
    agree that the s. 11(b) clock began to run on April 25, 2012, when the
    information against the appellant was laid. The clock stopped on February 13,
    2018, when the appellants trial counsel completed his closing submissions. The
    defence waived around 2 years and 7 months of this total time, largely due to
    medical issues affecting the appellants trial counsel.

Procedural history

[117]

Before assessing the
    application judges decision on the transitional exception, I will briefly
    summarize the procedural history that is relevant for the purposes of this
    appeal.

(i)

June to October 2012: First OCJ appearance and intake scheduling

[118]

On June 14, 2012, the
    appellant made his first appearance in the Ontario Court of Justice (OCJ).
    The Crown completed its disclosure on August 28, 2012. After confirming receipt
    of disclosure, the appellants trial counsel advised that he would be out of
    the country for much of September 2012. He thus requested an adjournment until
    October 2012 to return to schedule the judicial pre-trial. Accordingly, the
    intervening period of about 1.5 months was waived by the defence for the
    purposes of the s. 11(b) analysis.

[119]

On October 10, 2012, the
    first judicial pre-trial was scheduled for November 16, 2012.

(ii)

November 2012 to April 2015: The OCJ preliminary inquiry

[120]

On November 16, 2012, the
    parties met to discuss scheduling for the preliminary inquiry. The Crown declined
    the earliest available start date of October 16, 2013. As such, the 8-day
    preliminary inquiry was scheduled to begin on October 24, 2013. The Crown
    concedes this 8-day gap as Crown delay. The parties agreed to return on January
    23, 2013 to confirm the dates and the accuseds election.

[121]

On January 23, 2013,
    the confirmation date, the appellants trial counsel was reported to be ill and
    unable to work until March 2013.

[122]

On March 20, 2013, the
    parties returned and confirmed the October 24 to November 4, 2013 preliminary
    inquiry dates. The court ordered the defence to deliver its statement of issues
    for the preliminary inquiry by April 30, 2013.

[123]

The defences statement
    of issues was ultimately delivered on October 16, 2013.

[124]

On October 24, 2013, the
    court informed the parties that it would be unable to accommodate the
    preliminary inquiry as scheduled. The matter was put over to April 28, 2014. It
    is not disputed that this 6.1-month period constitutes institutional delay.

[125]

On April 28, 2014, the
    court was once again unable to begin the preliminary inquiry. At the Crowns
    suggestion, the parties reconvened the following day and agreed to bifurcate
    the preliminary inquiry by using the four available days during the first week of
    May 2014 and returning to complete the inquiry the week of September 26, 2014, which
    was the next earliest available date. The parties agree that this 4.7-month
    period constitutes institutional delay for the purposes of the s. 11(b)
    analysis.

[126]

The preliminary
    inquiry commenced on May 1, 2014, continuing through May 2 and from May 5 to 6.
    However, the inquiry could not continue in September as planned, as the
    appellants trial counsel fell ill. This time was also waived as defence delay.

[127]

On April 27, 28, and 30,
    2015, the preliminary inquiry was completed. The appellant was committed for
    trial in the Superior Court of Justice (SCJ).

(iii)

June 2015 to March 2016: SCJ pre-trial proceedings

[128]

At the initial SCJ
    judicial pre-trial, on June 2, 2015, trial dates could not be set because the
    parties disagreed on the estimated length of trial. The Crown urged that the
    trial could be completed in 4 weeks, but the defence argued it would require up
    to 6 weeks.

[129]

The following day, the
    parties returned and agreed to start the trial on April 4, 2016, which was the
    earliest available date on the long trial list.

[130]

On March 9, 2016, the defence
    brought its s. 11(b) application. The Crown advised that the defence was also
    required to bring an application to adduce third-party suspect evidence. The
    defence agreed to file the third-party suspect application, and ultimately did
    so on March 30, 2016.

[131]

On March 24, 2016, the
    date set for the s. 11(b) application hearing, the defence requested an
    adjournment for additional preparation time.

(iv)

April 2016 to January 2018: Waived delay

[132]

The trial did not
    proceed as scheduled on April 4, 2016. The appellants trial counsel was unable
    to proceed at that time due to serious health issues. As such, the defence
    agreed to waive all delay from this point until the end of trial.

[133]

The trial ultimately
    began on January 29, 2018. It lasted just under 2 weeks; closing submissions
    were completed on February 13, 2018.

Principles governing the transitional exception

[134]

Jordan

was released in July 2016.

[135]

The appellants
    s. 11(b) application was filed in March 2016, before
Jordan

was
    released, but not argued until October 27, 2017.

[136]

In cases such as this,
    where charges are laid pre-
Jordan
, but the
    trial concludes post
-
Jordan
,
a
    transitional exceptional circumstance will apply when the Crown satisfies the
    court that the time the case has taken is justified based on the parties
    reasonable reliance on the law as it previously existed:
Jordan
,
    at para.
96
.

[137]

Deciding whether the
    transitional exception is warranted is a highly contextual determination:
Jordan
, at para.
96
.
    See also,
R. v. Williamson
,
2016 SCC 28
,
    [2016] 1 S.C.R. 741, at para.
24
;
R. v. Cody
,
2017 SCC 31
,
    [2017] 1 S.C.R. 659, at para.
74
;
R. v. Picard
, 2017 ONCA 692,
137 O.R. (3d) 401
,
    at para.
71
,
    leave to appeal refused, [2018] S.C.C.A. No. 135;
R. v.
    Powell
,
2020 ONCA 743
,
    153 O.R. (3d) 455, at paras.
9-10
;

R. v. Wookey
, 2021 ONCA 68, 154 O.R. (3d) 145,
    at para. 79.

[138]

As affirmed in
Picard
, at para. 71, to determine whether the
    transitional exception justifies a delay above the presumptive
Jordan

ceiling, a courts
    contextual assessment typically includes the following considerations:


I.

the complexity of the case;


II.

the period of delay in excess of the
Morin
guidelines;


III.

the Crowns response, if any, to institutional
    delay;


IV.

the defence efforts, if any, to move the case
    along; and


V.

prejudice to the accused.

[139]

In the transitional
    exception analysis, the judge hearing an s. 11(b) application is tasked with
    attributing the delay as it would have been attributed under the
Morin
framework. Under
Morin
,
    delay could be attributed either to the Crown, to the defence, as institutional
    delay, or as neutral time required for case intake or preparation purposes.

[140]

For two-stage trials,
    like the one at issue on this appeal, the relevant guideline under

Morin

is combined Crown
    and institutional delay of 14-18 months. The purpose of the
Morin

guideline, in part,
    was to recognize that there is a limit to the delay that will be acceptable
    based on limited institutional resources. That said, the guideline was intended
    to be flexible, depending on the courts contextual assessment of the other
    considerations outlined above.

[141]

While the application judge made overall findings, he did not
    make attributions of delay according to
Morin
.
    Both parties agree it was an error for him not to do so.

[142]

The standard of review for characterizing delay under s. 11(b) is
    correctness:
R. v. Pauls
, 2020 ONCA 220, 149
    O.R. (3d) 609, at para. 40, affd 2021 SCC 2, 396 C.C.C. (3d) 145. As a result,
    the Crown argues there is little significance to this error.

[143]

In my view, it would
    have been preferable for the application judge to have attributed the periods
    of delay. In any event, it now falls to this court to do so.

Positions of the parties on institutional delay

[144]

On this appeal, the
    main dispute between the parties is whether the combined Crown and
    institutional delay in the appellants case exceeded the
Morin
guidelines.

[145]

The
    appellant argues that the vast majority of the net
Jordan
delay, 32.1 out
    of the 38.9 months, was directly caused by chronic institutional backlogs in
    both the OCJ and SCJ and by the Crowns failure to prioritize this case. For example,
    the appellant points out that the case was delayed for a combined period of around
    11 months because the OCJ could not provide the dates needed to complete the
    preliminary inquiry (6.1 months from October 2013 to April 2014, and a further 4.7
    months from May to September 2014).
The appellant urges this court to
    view the overall delay in the context of the well-known institutional backlog
    at the College Park Courthouse, where this matter initially proceeded: see,
R. v. Lore
, 2013 ONCJ 429, 290 C.R.R. (2d) 29, at para.
    4, citing
R. v. Donaldson
, 2010 ONCJ 3, 204
    C.R.R. (2d) 131, at para. 22.

[146]

Applying the
Morin

framework
,
the appellant
    contends that the period of institutional and Crown delay in this case was 26.6
    months, or nearly 9 months more than the upper limit of the range identified in
Morin
.

[147]

The Crown takes no issue with the appellants characterization of the
    combined 11-month wait for preliminary inquiry dates at the OCJ as
    institutional delay. Nevertheless, according to the Crown, the total combined
    institutional and Crown delay yields an operative delay of less than 12 months,
    well below the
Morin
guideline.

[148]

Specifically, the Crown contends that the following chart represents
    the correct attribution of delay:



Total time:

5 years, 9 months, 19 days



Waived
          delay:

2 years, 6 months, 27 days



Neutral delay:

2 years, 3 months, 20 days



Institutional delay:

11 months, 13 days



Crown delay:

8 days



Operative delay (Institutional plus Crown delay)

11 months, 21 days



[149]

At the heart of the dispute between the parties regarding s. 11(b) is
    whether the defence was ready to proceed at several key junctures. I return
    to this question below.

The proper attribution of delay under
Morin

[150]

For purposes of
    attribution in this case, the delay analysis may be divided into the three
    discrete periods of delay in dispute: (i) April 25, 2012 to August 28, 2012 (the
    OCJ intake period); (ii) November 16, 2012 to October 24, 2013 (the OCJ preliminary
    inquiry period); and (iii) July 23, 2015 to April 4, 2016 (the SCJ pre-trial
    period).

[151]

I will deal with each disputed
    delay period in turn.

(i)
The OCJ intake period: April 25, 2012 to
    August 28, 2012

[152]

The OCJ intake period,
    the first period under dispute, ran from April 25, 2012, when the appellant was
    charged, until August 28, 2012, when Crown disclosure was completed and the initial
    OCJ judicial pre-trial was scheduled.

[153]

The appellant argues
    that 2.1 months of this 4-month period should be allocated to Crown delay in
    light of the delayed Crown disclosure, which consisted of audio recordings of
    police interviews with certain witnesses.

[154]

The Crown submits that
    the entire 4-month period should be allocated as neutral intake time. In the
    Crowns view, any modest delays in disclosure did not actually delay the intake
    process. Further, the Crown contends that there is no reason to believe the
    defence did not already have the substance of the interviews, as reflected in
    written summaries or notes given in the documentary disclosure.

[155]

The Crown relies on
R. v. Mahmood
, 2012 ONSC 6290, 271 C.R.R. (2d) 94, at
    paras. 37-38, for the proposition that 2 to 11 months was the general range for
    intake time in Ontario when the appellants case entered the system.

[156]

I agree with the Crown
    on this point. In my view, the 4-month OCJ intake period was neutral intake time.
    There is no indication in the record that the timing of Crown disclosure led to
    additional delay. Moreover, 4 months was well within the accepted range at the
    time.

(ii)
The OCJ
    preliminary inquiry period: November 16, 2012 to October 24, 2013

[157]

The second disputed period
    spans 8.3 months, from November 16, 2012, when the first preliminary inquiry
    dates were set, to October 24, 2013, the day the preliminary inquiry was initially
    scheduled to commence.

[158]

The appellant argues
    that 3 months of this period should be allocated as neutral preparation time,
    with the balance, 8.3 months, allocated to institutional delay.

[159]

The Crown concedes that
    8 days of the OCJ preliminary inquiry period were attributable to the Crown
    (for declining the earlier October 16 start date) and 8 days were institutional
    delay.

[160]

However, according to
    the Crown, the remaining time, nearly 11 months, was neutral preparation time.
    The Crown urges that the defence was still preparing for the preliminary
    inquiry and therefore not ready to proceed until October 16, 2013.

The statement of issues

[161]

The Crown takes this
    position on the basis that the defence only provided its statement of issues on
    October 16, 2013, over 5 months after the court-ordered deadline, and notwithstanding
    repeated commitments to provide that document earlier, which I will detail
    below.

[162]

Under the
Morin

analysis,
    institutional delay time only begins to run once the parties are ready to
    proceed but the court cannot accommodate them:
Morin
,
    at pp. 794-5. Simmons J.A. explained this principle in
R.
    v. Tran
,
2012 ONCA 18
, 287 O.A.C. 94, at
    para.
32
:

Parties should not be deemed automatically to be ready to
    conduct a hearing as of the date a hearing date is set. Counsel require time to
    clear their schedule so they can be available for the hearing as well as time
    to prepare for the hearing. These time frames are part of the inherent time
    requirements of the case.

[163]

As long as the
    statement of issues was outstanding, the Crown argues, the defence was not in
    fact ready to proceed.

[164]

Section 536.3 of the
Criminal Code

provides that, where
    the accused requests a preliminary inquiry, counsel for the accused shall give
    the court and the Crown a statement setting out the issues upon which the
    accused wants evidence to be given at the inquiry, and a list of the witnesses to
    be heard. The statement is to be provided within the time set out in the applicable
    rules of court, or as directed by a justice.

[165]

In this case, an 8-day
    preliminary inquiry was slated to begin October 24, 2013. As noted, however, in
    January 2013, the appellants trial counsel was reported to be ill and unable
    to work until the end of March.

[166]

The next court
    appearance was March 20, 2013. The appellants trial counsel said, were set
    and ready to go, but then acknowledged he had not yet provided the statement
    of issues. The trial Crown asked that he deliver and file it with the court. The
    appellants trial counsel agreed. The court directed the appellants trial
    counsel to file the statement of issues by April 30, 2013.

[167]

On April 30, 2013,
    counsel still had not provided the statement of issues as ordered. Further
    commitments to provide the statement followed. The statement of issues ultimately
    was delivered on October 16, 2013.

[168]

Based on the
    foregoing, I do not accept either partys account of the proper attribution of
    delay arising from the OCJ preliminary inquiry period.

[169]

I acknowledge that the
    defence failed to undertake a mandatory preparatory step for the preliminary
    inquiry in the face of a court-ordered deadline and repeated commitments to do
    so. However, particularly in light of the inability of appellants trial
    counsel to work during some of this time due to illness, part of this delay can
    reasonably be characterized as inherent preparation time.

[170]

On the other hand,
    allocating this entire period to neutral preparation time on the basis of a
    one-page document, which, in this case, was unlikely to alter the course of the
    Crowns preparation in any event, would be unwarranted. Put simply, there is no
    basis in the evidence to suggest that the late delivery of the defence statement
    of issues caused any additional delay.

[171]

As a result, I conclude
    that the most appropriate allocation of the OCJ preliminary inquiry period is
    to split the 8.3 months between institutional delay and neutral preparation time,
    but with the majority allocated as neutral time.

[172]

Therefore, for this 8.3-month
    period, 3 months is allocated to institutional delay, while the balance of 5.3
    months is allocated as neutral preparation time.

(iii)
The SCJ pre-trial period: July 23, 2015 to
    April 4, 2016

[173]

The final disputed
    period covers the 8.4 months between July 23, 2015 and April 4, 2016, the date
    the trial was initially scheduled to begin.

[174]

The parties agree that
    the first 3 months of the SCJ pre-trial period should be allocated as neutral
    preparation time.

[175]

However, the appellant
    says the remaining 5.4 months was institutional delay. According to the
    appellant, the trial was virtually identical to the preliminary inquiry and
    there was little left to prepare. Notably, the appellant says the third-party
    suspect application he brought in March 2016, just days before trial was set to
    begin, had no material impact on the delay.

[176]

The Crown argues this
    5.4-month period was all neutral time, not institutional delay, as the parties
    were not ready to proceed to trial. In making this argument, the Crown relies
    on the appellants third-party suspect application. The Crown takes the
    position that the defence should have brought the third-party suspect application
    much earlier. Since they did not, the outstanding 5.4 months in this period was
    preparation time that was needed by defence counsel.

[177]

Once again, apart from
    the agreed upon 3 months of inherent preparation time, I am not persuaded by
    the logic of either partys position on the proper
Morin

attribution of the SCJ pre-trial period.

[178]

I accept the Crowns
    submission that the majority of the remaining 5.4 months was attributable to
    the need for defence preparations for trial, including the third-party suspect application
    hearing. As canvassed above, a key defence theory at trial was that Mr.
    Lawrence, not the appellant, was the real perpetrator of the frauds. It is
    therefore reasonable to assume that, as the appellants trial counsel
    acknowledged, the third-party suspect application was integral to the defence
    case and would have required significant preparation time.

[179]

However, I would also find
    that a portion of this period was attributable to institutional delay, as the
    appellant urges. In my view, it is unlikely that a full 5.4 months would have
    been necessary to prepare for a single evidentiary application, no matter how
    crucial it may have been. Further, the third-party suspect application was
    brought only days before the scheduled trial date. One would expect that, by
    this late stage, both sides would have been substantially ready to proceed on
    the merits.

[180]

I would therefore
    divide this disputed 5.4-month period between institutional delay and neutral preparation
    time, resulting in 2 months of institutional delay and 3.4 months of neutral
    time.

Other
Morin
considerations

[181]

In addition to the
    allocation of delay, the
Morin
framework
    instructs judges to consider the seriousness of the offence, the complexity of
    the case, any prejudice to the accused arising from the delay, and the diligence
    of the parties in responding to the delay and moving the case forward.

[182]

The appellant argues
    that the charges, while serious, were not of sufficient gravity to justify
    going beyond the guideline contemplated in
Morin
.
    The appellant further contends that the application judge erred in finding that
    this case was complex. In the appellants view, this was a basic fraud case.

[183]

I would not give
    effect to this submission. In my view, the seriousness of the charges and the
    complexity of the case are not determinative of whether the transitional
    exception was properly applied. Indeed, the application judge focused on other
    considerations, as he was entitled to do.

[184]

I would add that even if,
    as the appellant argues, this case was not sufficiently complex to meet the
    test set out in
Jordan
, for transitional cases
    moderate complexity bears on the reasonableness of the delay:
R. v. Pyrek
, 2017 ONCA 476, 349 C.C.C. (3d) 554, at
    para. 30.

[185]

With respect to
    prejudice, the application judge found that the delay had not caused the
    appellant sufficient prejudice to alter his conclusion that the delay was
    reasonable based on the transitional exceptional circumstance. In support of
    this finding, he noted that the appellants claims of prejudice had been undermined
    in cross-examination.

[186]

The appellant submits
    that the application judge failed to consider the fact he suffered from severe
    depression and was involuntarily committed on the eve of trial, which he says
    demonstrate the grave prejudice arising from these lengthy proceedings.

[187]

Further, even if there
    had been no prejudice, the appellant says that, properly attributed, the sheer
    length of the delay puts it outside the bounds of reasonableness.

[188]

The Crown responds that,
    under
Morin
, an accused may rely on prejudice
    caused by the delay in being brought to trial, but not on prejudice from the
    fact of being charged and tried, nor on prejudice arising from delay caused by inherent
    time requirements:
R. v. Kovacs-Tatar
(2004),
    73 O.R. (3d) 161 (C.A.), at paras. 32-33;
R. v. Boateng
,
    2015 ONCA 857, 182 O.R. (3d) 372, at para. 41.

[189]

In light of the lack
    of evidence in the record specifically linking the delay to the alleged
    prejudice to the appellant, I see no basis on which to interfere with the
    application judges conclusion on this matter.

[190]

Finally, I would treat
    the diligence of the parties as a neutral factor. Each side blames the other
    for the delay in this case. As I have indicated, however, in my view the record
    tells a more balanced story.

The final balancing regarding the transitional exception

[191]

Of the nearly 39
    months of net
Jordan
delay, the appellant
    argues that the total operative institutional and Crown delay according to the
Morin

framework was 26.6 months
    as of April 4, 2016, significantly beyond the 18-month upper guideline under
    the transitional exception.

[192]

Based on the Crowns proposed
    attribution, the operative delay was just shy of 12 months, well under the
Morin

guideline.

[193]

As noted in my analysis
    above, I have rejected this all or nothing approach with respect to
    attributing delay in the disputed periods. Based on a more balanced approach, I
    conclude that the combined Crown and institutional delay in this case, at 17
    months, fell within the
Morin
guideline.

[194]

At this juncture, it is
    important to recall the overriding question underlying the application of the
    transitional exception: Did the parties reasonably rely on the state of the law
    as it existed at the time?

[195]

The periods in dispute
    on this appeal all occurred before
Jordan
was
    released. At that time, there was no reason for the parties to believe they
    would be judged by any standard other than the
Morin

framework, nor any realistic prospect that the case
    could have moved more quickly to trial based on
Jordan
.

[196]

Therefore, in light of
    my view that the 18-month
Morin

guideline for institutional and Crown delay was not
    exceeded, and that no other
Morin

considerations affected the reasonableness of the delay
    in this case, I conclude there is no error in the application judges dismissal
    of the appellants s. 11(b) application based on the transitional exception.

(b)

Does this case meet the complex case exception threshold?

[197]

Given my conclusion on the transitional
    exception
, it is unnecessary to assess the application judges analysis
    regarding the complex case exceptional circumstance.

(c)

Conclusion on s. 11(b)

[198]

Despite the
    application judges failure to attribute delay, based on my contextual
    assessment pursuant to
Morin
, I would reject
    the appellants submission that the application judge erred in law in applying
    the transitional exception. In my view, there is no reversible error in his
    conclusion that the delay in this case did not violate the appellants s. 11(b)
    rights.

[199]

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

B.

THE SENTENCE APPEAL

[200]

The appellant takes
    issue with only one aspect of his sentence: the amount of the restitution order
    and corresponding fine in lieu of forfeiture.

[201]

This ground of appeal
    relates to the restitution funds applicable to Jeff Fallon, namely the $40,000 Mr.
    Fallon invested in the non-existent Rubicon shares and the additional $5,000 he
    invested on behalf of his daughter, Nicole. Although Mr. Fallon gave this money
    to 604, he was not a named complainant in the indictment against the appellant.

[202]

The Crown properly concedes
    that this aspect of the sentencing order was in error. While Mr. Fallon and his
    daughter both lost money investing with 604, the Crown did not seek to prove
    fraud in relation to those losses. Therefore, their losses were not as a
    result of a proven offence for purposes of the restitution order, pursuant to s.
    738(1)(a) of the
Criminal Code
,
nor were
    the funds proven to be proceeds of crime in the hands of the appellant for
    purposes of the fine order, pursuant to s. 462.37(3) of the
Criminal Code
.

[203]

The Crown also correctly
    clarifies that the amount of money at issue applicable to Mr. Fallon was
    $45,000, not $42,500 as stated in the appellants factum.

[204]

Therefore, the total
    amount of both the restitution and the fine order should be reduced from
    $1,100,799 to the revised total of $1,055,799.


[205]

Accordingly, the
    sentence appeal is allowed. The restitution and fine orders must each be revised
    to remove the monies applicable to Mr. Fallon and his daughter.

CONCLUSION

[206]

For reasons above, I
    would dismiss the appeal from conviction.

[207]

The
    sentence appeal is allowed. Accordingly, both the restitution and fine orders shall
    be reduced by $45,000 each, to a revised total for each order of $1,055,799.
    The amount of $45,000 payable to Jeff Fallon & Nicole Fallon shall be
    deleted from the schedules attached to the restitution order and the fine
    order.

Released: July 22, 2021 G.R.S.

L. Sossin J.A.

I agree. G.R. Strathy C.J.O.

I agree. K. Feldman J.A.


