R. v. Sanderson, 2018 ONCJ 285

ONTARIO COURT OF JUSTICE CITATION: R. v. Sanderson , 2018 ONCJ 285 DATE: 2018 05 01 COURT FILE No.: Niagara Region 998 16 1341 BETWEEN: HER MAJESTY THE QUEEN — AND — William Sanderson Before Justice J. De Filippis Heard on April 18, 2018 Reasons for Ruling released on May 1, 2018 Mr. E. Slater.......................................................................................... counsel for the Crown Mr. W. Sanderson................................................................................. representing himself De Filippis, J.: Introduction [ 1 ] This is an application by defendant for an Order staying proceedings pursuant to sections 11(

b) and 24(1) of the Charter of Rights and Freedoms. It is governed by the decision of the Supreme Court of Canada in R v Jordan 2016 SCC 27 . That case established two presumptive ceilings for delay in criminal matters: 18 months in the provincial courts and 30 months in the superior courts. [ 2 ] The defendant faces trial for 12 counts under the Criminal Code with respect to fraud over, fraud under, theft by conversion, using a forged document, and money laundering. The allegations cover the period from 2010 to 2014. The investigation began in May 2015 and concluded in May 2017.

The Information was sworn on June 9, 2016. To date there have been 29 appearances, including the consent release on bail on the day of the arrest. A judicial pre-trial was not scheduled until more than 18 months from the date that the charges were laid. Soon after, the defendant’s lawyer was removed from the record. The defendant now represents himself. Sixteen days are set aside for trial between April 26 and August 22, 2018, with this unreasonable delay motion scheduled for April 18.

By the end of the scheduled trial, 26.5 months will have elapsed. [ 3 ] An affidavit filed by the Crown deposes to the following: Disclosure was provided in August of 2016. It consists of more than 22,000 pages in a Portable Document (“.pdf”) file and an 18 Gigabyte Outlook data file with additional email correspondence attributed to the defendant. There are 124 potential witnesses, including tree local justice officials (thereby necessitating that I, as an out of town judge, preside). The defendant was the Executive Director of the St. Leonard’s Community Services (“SLCS”) from February 1984 until December 2014.

SLCS is a non-profit charitable agency that provides support services for people in multiple locations throughout Brant and Haldimand Counties. SLCS employs about 200 people and has an annual budget of 13 million dollars. Program funding is provided in by the various levels of government and certain private agencies. It is alleged that Mr. Sanderson converted St. Leonard’s resources to the benefit of himself and his family.

In addition, it is alleged that he solicited and obtained funds by falsely asserting (variously) that his granddaughter or daughter was afflicted with cancer and that funds were needed to obtain immediate treatment at a hospital in Boston. [ 4 ] The Crown argues that the net delay, after deducting time attributable to defence delay is 16 months. In the alternative the Crown pleads complexity to explain the delay. The defendant rejects both arguments. He asserts that if his former lawyer waived and caused delay, he did so without instructions.

The defendant further submits that even if his lawyer had been instructed to pursue

resolution discussions, the Crown has an obligation to ensure these are conducted within the Jordan framework. He also claims that the complexity of the case is illusory. [ 5 ] I dismiss the motion to stay proceedings. I find that the delay is below the presumptive ceiling. These are my reasons. [ 6 ] At the outset it is important to make the following comments: The defendant filed extensive written submissions. His statements of law are, in general, correct. He quotes at length from correspondence with his former lawyer, Mr. Manishen, and, in so doing, occasionally gives evidence himself.

I asked the defendant whether he was waiving solicitor client privilege but did not receive a clear answer. I then suggested that he had, if fact, done so, and asked if either party wished to call the lawyer as a witness. Both declined. I repeated this question to the defendant more than once during the hearing when the Crown argued that prior defence counsel had waived or caused delay. The defendant did not take up the offer. This is significant because the defendant’s assertions that his lawyer acted without instructions is not supported by direct evidence from him or his lawyer.

It is, of course, open to the defendant to ask me to infer this from other evidence and I have considered his submissions in this regard. The Legal Framework [ 7 ] In R v Cody 2017 SCC 31 , the Supreme Court of Canada said the following (at paragraphs 20 – 37): The new framework established in Jordan for analyzing whether an accused person's right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts .

The first step under this framework entails "calculating the total delay from the charge to the actual or anticipated end of trial"…. After the total delay is calculated, "delay attributable to the defence must be subtracted". The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then "depends upon whether the remaining delay - that is, the delay which was not caused by the defence - is above or below the presumptive ceiling" If the net delay falls below the ceiling, then the onus is on the defence to show that the delay is unreasonable.

To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay. Defence delay is divided into two components: (1) "delay waived by the defence"; and (2) "delay that is caused solely by the conduct of the defence". A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal….

In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction". It applies to any situation where the defence conduct has "solely or directly" caused the delay. However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case.

To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case. For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted. The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.

As we said in Jordan , the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests". Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted. These examples were, however, just that – examples. They were not stated in Jordan , nor should they be taken now, as exhaustively defining deductible defence delay.

Again, as was made clear in Jordan , it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge". It is highly discretionary….. Defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it is conducted , may attract scrutiny.

To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(

b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. As well, inaction may amount to defence conduct that is not legitimate. Illegitimacy may extend to omissions as well as acts... Accused persons must bear in mind that a corollary of the s. 11(

b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time,

collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently"…. We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan . All justice system participants - defence counsel included - must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(

b) of the Charter …. We reiterate the important role trial judges play in curtailing unnecessary delay and "changing courtroom culture"… [ 8 ] Since the charges in the matter were laid before the Supreme Court released its decision in Jordan , this could be said to be transitional case. However, since, the charges pre-dated Jordan by a mere four weeks, I will not consider it as such. [ 9 ] The end of trial means the verdict: R v Gopie 2017 ONCA 728 at para 79 .

In calculating delay at 26.5 months (from June 9, 2016 to August 22, 2018) the Crown assumes a verdict will be rendered immediately upon the conclusion of evidence and submissions. That assumption may not be warranted in a 16-day trial, over several months. It would be prudent to add another month to allow me time to prepare reasons. Accordingly, the relevant period of delay is 27.5 months. The Position of the Crown [ 10 ] The Crown submits that the Defence expressly waived delay on two occasions, for a seven-week period:

(1) On the appearance of May 15, 2017, until the appearance of June 5, 2017, a period of 21 days or three weeks and

(2) On the appearance of September 11, 2017 until October 9, 2017, a period of 28 days or 4 weeks. [ 11 ] The Crown also submits the following adjournments are also “Defence delay” in the sense that they were initiated by the Defence for its own tactical reasons: All adjournments between at least September 15, 2016 and May 15 th , 2017, a period of 242 days, or approximately 34.5 weeks; The adjournment between June 5 th , 2017 and June 26, 2017, a period of 21 days or 3 weeks; The adjournment between July 24 th , 2017 and September 11, 2017, a period of 49 days or 7 weeks; The adjournments from October 23, 2017 to November 14, 2017, a period of 22 days. [ 12 ] This characterization by the Crown is grounded in the argument that these delays were caused by Defence efforts to persuade the Crown to abandon the prosecution.

The Crown acknowledges that this is a legitimate strategy. Nevertheless, the delay represents periods of time during which the Crown and the Court were ready to proceed, but the Defence was not and which should be excluded from the calculation of net delay. On this basis, the Crown submits that an additional 51.5 weeks should be excluded from the analysis. As such, the Crown calculates 70 weeks of “net delay”; that is eight weeks below the 18-month ceiling set out in the Jordan framework. As noted, however, this rests on the unwarranted assumption that a verdict is rendered immediately.

I would add another four weeks for that purpose. The result remains under 18 months. Accordingly, if the Crown is correct in its description of waiver and defence delay, the defendant shoulders the burden of persuading me that, although the delay is below the presumptive ceiling, it is nevertheless unreasonable. To rebut any such argument the Crown points to the voluminous disclosure and the numerous witnesses. The Crown also relies on the latter to submit that the case is sufficiently complex that it constitutes an “exceptional circumstance”.

Having regard to the decision, I have reached, I need not consider the exceptional circumstances described by Jordan . [ 13 ] The evidence relied upon by Crown counsel is set out in a Chart he prepared and included at the end of these reasons as well as the correspondence between the defendant and his former lawyer that was presented by the defendant at this motion. The excerpts set out in the Chart fairly reflect the transcripts as a whole. The defendant has also fairly excerpted communications between him and his lawyer. The relevant transcripts, emails, and letters are a matter of record before me.

The Position of the Defence [ 14 ] The defendant argues that due to his non-appearance for all court dates between June 9, 2016 and February 9, 2018, he was not aware until late in the day, that his lawyer had waived or caused delay and that, in any event, both the Crown and his lawyer failed to respect the Jordan framework. What follows is the evidence offered by the defendant in support of this position. It is taken from his written submissions: On September 5/17, Mr.

Manishen emailed the Applicant, advising that the Crown had requested disclosure of the Applicant’s rebuttal for the proposed plea bargain charges, and he further advised that this disclosure was necessary if there was any hope of persuading the Crown to drop all charges. On September 12/17, Mr. Manishen, emailed the Applicant a draft letter addressed to the Crown, incorporating the Applicant’s rebuttal of the two plea bargain charges and concluding with the suggestion that it would be in the best interests of all concerned to dismiss the charges.

The letter dated September 12/17, was emailed to the Crown on Oct 4/17. Prior to breaching the presumptive 18-month ceiling, on, or about December 7/17. there would be more brief telephone conversations between Mr. Manishen and Mr. Slater, totaling 60 minutes, which occurred on October 19/17, October 25/17, November 3/17 and November 9/17, none reporting advancement of the case. Before year end, there would also be 3 email exchanges with the Crown, on October 31/17, November 8/17 and November 14/17 all

focused on scheduling mutually agreeable meeting dates between the two lawyers. On November 14/17, Mr. Manishen appeared in court for the first time, advising that he had held discussions with Mr. Slater to try to narrow the issues and that he was seeking a judicial pre-trial hearing on December 13 at 9:30 am. He requested and received an adjournment until December 19/17. On the same day, November 14/17, Mr.

Manishen called the Applicant to advise that the Crown would not drop the charges, as suggested in Counsel’s September 12/17 email, and was still requiring guilty pleas, in exchange for a non-custodial sentence. The Applicant assured Mr. Manishen that his position opposing a plea bargain had not changed. On November 26/17, the Applicant emailed Mr. Manishen, a further detailed rebuttal of the Crown’s proposed plea charges, reaffirming in the clearest possible terms, that he was not interested in a plea bargain because he believed there was a solid defense to refute all of the charges. On December 8/17, Mr.

Manishen sent an email to Mr. Slater advising that “It doesn’t appear that my client is willing to accept the resolution proposed.”. On December 19/17, Mr. Manishen’s agent addressed the Court stating, “Mr. Manishen wants to express first off, he is not waiving 11b, your worship. This delay is also on the part of the Crown.” On January 11, 2018, while discussing future trial dates, during the second Judicial Pre-Trial, Mr.

Manishen stated that he would “…see whether or not my client would agree to waive any delay that might result from holding off on booking that time till we got a ruling on severance and the Charter . I said I’d certainly recommend that.” Later the same day, on January 11, 2018, Mr. Manishen telephoned the Applicant requesting that he waive his 11b rights to save the Crown the trouble of booking trial dates that might not be needed. The Applicant refused. On January 28/18, the Applicant emailed Mr. Manishen to ask if there were any reasons at that time, not to proceed with an 11b application. Mr.

Manishen, responded that… “We acceded to the adjournments to try and resolve the case. We can’t now turn around and rely on the resultant delays. The Applicant replied that he had “never given any instructions to negotiate a plea bargain agreement.” In response, Mr.

Manishen wrote “We (the Crown and the Defense) both took the position that we needed the time we did to attempt to resolve the issues in the case before proceeding to a judicial pre-trial and setting a substantial amount of trial time.” The following day the Applicant responded, “To be clear, I gave no such instructions and if I had, it would not have been at the expense of my family and I enduring a 19 month wait for this trial, with no end in sight. I would therefore have no difficulty informing a judge that the delays occurred without my foreknowledge, concurrence or informed consent.” Mr.

Manishen replied that rather than plea bargaining, the delays were needed “…to review the disclosure and prepare a response”. The Applicant responded, “There is no indication that the 14 months of adjournments prior to September 2017 had anything to do with resolving my case and at no time, after this date was I informed that future adjournments would be mutually agreed upon in an effort to resolve the case.

In any event, had I been consulted, I would not have agreed to any further court delays.” In an email, dated February 4/18, which included a draft 11b proposal, the Applicant wrote… “Assuming we can avoid any potential conflicts of interest with the Crown and/or between you and I, in respect of the rationale given to the court for past adjournments, (as documented in the transcripts), I would like to proceed with this application at your earliest convenience.” In response, Mr.

Manishen emailed the Applicant on February 7/18 advising he was withdrawing as defense counsel citing several reasons, including the potential conflict of interest. On February 9/18, Mr. Manishen appeared in Court for the last time, to present the Application withdrawing as the Applicant’s defense counsel, citing a breakdown in their solicitor-client relationship as the reason. Analysis [ 15 ] I have quoted liberally from the defendant’s written material. The defendant’s evidentiary record on this motion, along with the transcripts, persuades me that Mr.

Manishen was actively engaged, on behalf of his client, in attempting to persuade the Crown to withdraw all charges or obtain a favourable sentence in the event of a guilty plea. There is no question that Mr. Manishen waived and caused delay for this purpose. It is for this reason that, during an exchange of email messages with the defendant, Mr. Manishen stated that he did not feel he could bring a

section 11(

b) motion. [ 16 ] The defendant did not personally appear in Court for much of the period in question. He now complains that he did not appreciate what his lawyer was doing until he read a letter sent by Mr. Manishen dated February 7, 2018.

Indeed, after oral submissions on this motion, I received additional written argument from the defendant that contains the following statement. …it needs to be explicitly stressed, in defense of the Applicant, that his expressed written objections to the rationale given by defense counsel for these adjournments, were primarily in reference to defense counsel’s references to resolving the case by plea bargaining, contrary to the Applicant’s well documented insistence that he did not wish to plead guilty. [ 17 ] By February 7, 2018, Mr. Manishen had concluded that he could no longer represent the defendant.

His reporting letter includes

the following: By way of a brief recap, over the last several months, I have tried to persuade the Crown not to proceed with the charges. He hadproposed a resolution consisting of pleas of guilty by you to two counts of fraud under $5000 upon which he would elect to proceed bysummary conviction. One count would be from the allegations of fraudulent solicitation of funds for your grand-daughter’s anddaughter’s health care and the other would be from the SLCS charges, namely the obtaining of tuition funding for your niece Samantha.

He would agree to ca conditional sentence, an option which would not otherwise be available were he to proceed on a charge of fraudover $5,000. You and I have discussed the resolution at length on a number of occasions. Your son has been given the chance to offer his input. Aswell, your friend John Renwick offered to do so and, with the Crown’s concurrence and yours, I understand he met you and discussedthis resolution, along with other issues.

You have made it clear that you will not accept the resolution as proposed and, in addition to the applications for severance and s. 8,want to apply for a stay of proceedings as a result of an infringement of your rights under s. 11(

b) of the Charter. In your email of February 4th, 2018, you have raised the issue of a potential conflict of interest with the Crown and, as well, between you and I withrespect to the rationale given to the court for the adjournments…. …When we spoke again, you suggested that I could continue on the record as your counsel and could advise the trial judge of yourposition on the matter of the absence of instructions on the waiver of delay. I’ve considered whether this is realistic and have consulted with an experienced colleague to get the benefit of a second opinion. It is myview that, given you position with respect to the 11(

b) application, I cannot continue as your counsel. [18] This letter suggests, with reference to the defendant’s son and a friend, that the defendant was aware of the plea negotiations. Inaddition another solicitor client communication that shows the defendant was told that his lawyer was trying to persuade the Crown towithdraw all charges: On September 5, 2017, Mr.

Manishen reported to the defendant about discussions he had had with the Crown,including a “search argument” and whether the Defence should give reciprocal disclosure in pursuit “of our objective of getting thecrown to withdraw the charges”. [19] I find that the defendant knew or ought to have known that his lawyer had waived or caused delay and the reasons therefore. However, assuming the defendant is correct in asserting otherwise, does that matter. I conclude that it does not matter; that is, the Courtand Crown were entitled to rely on the representations of counsel of record.

If counsel acted without instructions, or contrary toinstructions, that may be a matter for civil remedies or Law Society proceedings, but it does not inform the 11(

b) analysis. I come to thisconclusion because of established principles about the role of counsel in a criminal case. [20] In R v Faulkner 2013 ONSC 2373 , 2013 O.J. 2315 (SCJ), Justice Code made the following observations (at paragraph39 ff): In criminal litigation, there are only a small number of fundamental decisions where the client "calls the shots".

Otherwise, counsel isresponsible for the conduct of the defence and counsel must exercise independent judgment as to what is in the client's best interests andas to whether any particular course of conduct is consistent with counsel's duties as an officer of the court. Rosenberg J.A. made thisclear in R. v. Samra (1998) (ON CA), 129 C.C.C. (3D) 144 (Ont. C.A.)….. In Law Society of Upper Canada v. DeTeresi, [2009] O.J.

No. 582 (S.C.J.), Durno J. made the same point: The role of defence counsel in a criminal trial is often, indeed too often, not understood by some accused persons and defence counsel.The issue was canvassed in New Approaches to Criminal Trials: The Report of the Chief Justice's Advisory Committee on CriminalTrials in the Superior Court of Justice, May, 2006, as follows: ... former Chief Justice Dubin, ... concluded that the accused controlled four decisions: whether to plead guilty or not guilty; whether tohave a preliminary inquiry or proceed directly to trial, where the option existed; whether to have a judge or a judge and jury trial; andwhether to testify, provided counsel could ethically call the accused to testify.

The Criminal Justice Review adopted the so-called Dubin Rules with the exception of whether or not there should be a preliminaryinquiry, concluding "defence counsel are responsible for all aspects of the preparation and presentation of their client's case". Thecommittee found support for this conclusion in the Bar Admission Course Criminal Procedure Materials of The Law Society of UpperCanada.

The 2005 Bar Admissions Course criminal law material instructs students as follows: Once an accused decides to plead notguilty, defence counsel should assume complete control and responsibility over the manner in which the defence will be conducted. It isdefence counsel's function to determine the appropriate course of action, always keeping in mind the best interests of the client, andalways taking time to keep the client abreast of developments in the case and the reasons for the crucial decisions made…. [21] In R v Malik 2017 ONCJ 647, Justice Schwarzl, in the context of an 11(

b) motion, ruled as follows: The Applicant argues that since his previous lawyer did not get specific instructions to waive any time periods, the waivers in 2016 werenot valid. I disagree that those waivers are invalid. Both the Court and the Crown must be able to rely on the representations made onthe record by counsel or agents for defendants. To hold otherwise would bog down proceedings with Courts needlessly probing thisissue on every appearance and would probably wind up requiring defendants to personally appear every time to ensure no confusion orambiguity regarding waivers.

In addition, if the Crown cannot rely on what they are told by agents or counsel, then they will press forearlier dates no matter what they are told by the defence. To find that the 2016 waivers in this case were not valid would do irreparableharm and prejudice to the Crown and adversely affect the efficient administration of justice. Therefore, the 81 days over the two periodsin 2016 described above shall also be deducted as clear and unequivocal waiver. [22] The defendant argued that the ruling in Malik is not relevant because it is a transitional case and Jordan lays down new rules –

and obligations – on all parties to prevent delay. He is right about Jordan and I will return to that. However, in my opinion, both Malik and Faulkner, correctly state the duties owed by Defence counsel to the client and the significance of their representations to the Court. This applies to the present case. Accordingly, even if Mr.

Manishen acted without, or contrary to, instructions, the periods of delay that he waived or caused (legitimately, on behalf of his client) bring this case below the presumptive 18-month rule established by the Supreme Court of Canada. [ 23 ] If I am wrong in foregoing opinion, I query whether the delay is not deductible as a” discrete event”. After all, solicitor client privilege is a fundamental and much protected principle of our law. In almost all cases, the Court and Crown will not, and cannot, know the instructions between lawyer and client.

As such, resulting delay, if caused without instructions, could be said to be “beyond the control of the Crown”. As this point was not argued before me, I will say no more about it. [ 24 ] Finally, I address the defendant’s argument that, notwithstanding Defence tactical decisions, the Crown and Court failed in their duty to prevent delay. As already noted, the Supreme Court of Canada stated that all participants in the justice system must prevent delay and in speaking to the court noted that, “We reiterate the important role trial judges play in curtailing unnecessary delay and "changing courtroom culture".

As such, it is troubling that this case was allowed to proceed through the system for slightly more than 18 months without holding a judicial pre-trial. The point was made by a Justice of the Peace Quinn to an agent for the Defence on July 24, 2017, as follows: You can advise Mr. Manishen that you know, he’s got to have some discussions with the defendant ……and with the Crown because this is going back some time now. Mr. Manishen has never been in this courtroom once.

I don’t know what kind of discussions he’s having with the Crown, but it’s got to get out of this Court and go somewhere else for a case management…because it’s not moving along. [ 25 ] Rule 4.2 of the Ontario Court of Justice addresses the obligations of counsel with respect to a judicial pre-trial:

(2) Before attending the pre-trial, it is desirable for the parties to (

a) meet in order to attempt to resolve issues; and (

b) review the file.

(3) At the pre-trial, it is required that the parties have authority to make decisions on (

a) disclosure; (

b) applications, including Charter applications, that the parties will bring at trial; (

c) the number of witnesses each party intends to call at the preliminary inquiry or at trial; (

d) any admissions the parties are willing to make; (

e) any legal issues that the parties anticipate may arise in the proceeding; (

f) an estimate of the time needed to complete the proceeding; and (

g) resolution of the matter, if appropriate. [ 26 ] Resolution discussions are to be encouraged and case management is essential in preventing delay. In a case with voluminous disclosure this will take time. In my view, Defence and Crown counsel were complying with their professional obligations and the Rules of Court.

That it can be said that they could have done so more quickly and that the Court could have done more to supervise the proceedings does not persuade me to accept the defendant’s submissions on point. [ 27 ] Jordan provides that where delay falls below the presumptive ceiling, the defendant bears the onus of demonstrating that the delay is nevertheless unreasonable.

To establish this, the Defence must satisfy both of the following criteria: (1) that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) that the case took “markedly longer” than it reasonably should have. The defendant has not met this burden. Result [ 28 ] The application to stay proceedings because of unreasonable delay is dismissed. The total delay between the laying of the charge and the expected verdict is 27.5 months. The net delay is one month below the presumptive ceiling. It has not been demonstrated that this is nevertheless unreasonable.

Released: May 1, 2018 Signed: Justice J. De Filippis

Court Date

Summary of Appearance Defence Delay 15 Sep 2016 T. Wood: “They are reviewing […]. He’s [Mr. Manishen] requesting October 20.” Defence Delay 15 Sep 2016 – 19 Oct 2016 5 Weeks 1 Dec 2016 T. Wood: “They are continuing to review the 30,000 page disclosure. They need an adjournment to January 16th please.” Defence Delay 1 Dec 2016 – 15 Jan 2017 6 Weeks, 4 Days 16 Jan 2017 D. Henderson: “He's asking for a date after February 17th because he received 30,000 pages of disclosure, and they're working on it. February 21 st , please.” Defence Delay 16 Jan 2017 – 20 Feb 2017 5 Weeks 21 Feb 2017 T.

Wood: Requests March 21– “[…] it's taking a long time for counsel and the Crown to sort through this matter.” E. Slater: Resolution discussion Friday previous and scheduled another discussion for 2-3 weeks in future. Defence Delay 21 Feb 2017 – 21 March 2017 4 weeks 21 Mar 2017 D. Henderson: “Mr. Manishen and Mr. Zuraw have initiated discussions. They need to continue to review volumes of disclosure. They are asking for four weeks, April 18th. There are 30,000 pages of disclosure, so I understand that's what is taking the time, but I've been asked not to waive 11(

b) because of the volume of disclosure, that's what the delay is. Defence delay 21 March 2017 – 18 April 2017 4 weeks 18 Apr 2017 D. Henderson: “He is asking for four weeks for Crown resolution.” Defence delay 18 April 2017 – 15 May 2017 ~ 4 weeks (27 days) 15 May 2017 D. Henderson: He is asking for June 5th, please. They are requiring additional time to continue talks. Although he hasn't waived 11(

b) up to this time, he has sent instructions he can waive 11(

b) on this particular adjournment to June 5th.” Waiver 15 May 2017 – 4 Jun 2017 3 Weeks 5 Jun 2017 D. Henderson: “He's asking for three weeks to set a date. Counsel and the Crown are actively involved in discussions. He says there's a lot of disclosure to go through.” Defence Delay 5 Jun 2017 – 25 Jun 2017 3 Weeks

26 Jun 2017 D. Henderson: “He's asking for July 24th to allow continuation of review of material and discussions with Crown counsel.”\ A. Minelli: Indicates that this appearance was to set a date, and that 11(

b) had been waived in the past. D. Henderson: “I don't have a notation indicating that he's waiving 11(

b) at this point and time, but it's a defence request, so that's the best I can tell you.” Defence Delay 26 Jun 2017 – 23 Jul 2017 4 Weeks 24 Jul 2017 T. Wood: “He’s requesting September 11 at 9:00. There's discussions that are still going on with the Crown and they are going to be doing their final review and getting instructions from their client.” […] Court: Indicates that this must move along. […] T. Wood: “It's my understanding they are setting a date on September 11th and the assigned Crown, Mr. Slater, has had meetings with Mr. Manishen.” D. Zuraw: “[…] I don't take any issue with my friend's request.

I understand Your Worship's comments, but I have the utmost faith in Mr. Slater that he knows when to ask to have the matter pushed along.” Defence Delay 24 Jul 2017 – 10 Sep 2017 7 Weeks 11 Sep 2017 T. Wood: “Counsel is requesting another four weeks to continue going through. […] Mr. Manishen's instructions are delay can be waived in the interim as necessary. We know the matter has been outstanding for quite some time.” Court: “[…] 11(

b) waived for the interval .” Defence Delay 11 Sep 2017 – 9 Oct 2017 4 Weeks 23 Oct 2017 D. Henderson: “[…] Having another resolution October 25 th so would ask for October 30th, please.” Defence Delay 23 October 30 Oct 2017 D. Henderson: “It's a complex fraud matter. He's asking for two weeks to set a date.” Defence Delay 30 Oct 2017 – 13 Nov 2017 2 Weeks Court Date

Summary of Appearance Defence Delay •