HER MAJESTY THE QUEEN v. WILLIAM CORNFORD, 2023 NBKB 033

Citation: 2023 NBKB 033 Date: ​​March 6, 2023 COURT FILE NO: FCR-10-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: HER MAJESTY THE QUEEN -and- WILLIAM CORNFORD Date of Hearing: February 16, 2023 Date of Decision: March 6, 2023 Subject Matter: Charter s. 11 (b) – Jordan Delay Before: Justice Terrence J. Morrison At: Burton, New Brunswick Appearances: Christopher Lavigne and Rachel Anstey, for the Crown Ben Reentovich, for Mr. Cornford DECISION Morrison, J. I. INTRODUCTION [ 1 ] This is an application by the accused, Mr. Cornford, where he seeks a stay of proceedings based on an alleged violation of s. 11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ” ), alleging that the delay in bringing this matter to trial exceeds the presumptive ceiling of thirty months, outlined in R. v. Jordan , 2016 SCC 27 . II. FACTS [ 2 ] The Fredericton Police Force conducted an extensive investigation for fraud. The alleged offences were divided into two separate categories: the first being against commercial victims, and the second pertaining to individual victims.

The present matter relates to the alleged commercial victims, while the separated but related matter relating to the individual victims is set for trial in December 2023. Following the above-mentioned investigation, Mr. Cornford was arrested by the Fredericton Police Force on July 24, 2020. The Informations relating to this matter were sworn and laid on July 31, 2020, November 26, 2020, and December 8, 2021. The Information laid on December 8, 2021 was as a result of a procedural issue.

The parties agree that the Informations pertinent to this case are the Information of July 31, 2020, and the Informations of November 26, 2020.

[ 3 ] Mr. Cornford made his first appearance in Provincial Court on November 30, 2020, and after several adjournments requested by the defence, the accused, on April 7, 2021, elected a trial by judge alone in the Court of Queen’s Bench, and preliminary inquiry dates were set for December 6 - 10, 2021. [ 4 ] In advance of the scheduled preliminary inquiry, the Crown advised that it would proceed by way of a “paper prelim”, pursuant to s. 540(7) of the Criminal Code . Following the preliminary inquiry, Mr.

Cornford was committed to trial on May 31, 2022. [ 5 ] The Indictment in this matter was filed on June 28, 2022, alleging twenty-five offences. [ 6 ] A four-week trial has been set to commence May 29, 2023 and is expected to conclude on June 23, 2023. IV. ANALYSIS AND DECISION A. General Principles [ 7 ]

Section 11(

b) of the Charter guarantees the right of accused persons to be tried within a reasonable time. In Jordan the Supreme Court of Canada established a framework for adjudicating s.11(

b) Charter issues. It established a presumptive ceiling for cases going to trial in the superior court at thirty months from the date of the charge to the actual or anticipated end of trial. If the delay to the anticipated end of trial exceeds thirty months, the delay is presumed to be unreasonable. The Crown may rebut the presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.

If it cannot the delay is unreasonable and a stay will follow ( Jordan , paras. 46-47 ). [ 8 ] The process for calculating the delay is as follows: 1) First, the total delay must be calculated and defence delay must be deducted. 2) Second, determine whether the remaining delay after deduction for defence delay is above or below the presumptive ceiling. 3) Third, delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable, but the Crown may rebut this presumption by showing that the delay is because of the presence of exceptional circumstances ( Jordan , para. 66-68 ). [ 9 ] In calculating defence delay, actions legitimately taken by the defence to respond to the charges do not constitute defence delay.

Defence delay comprises delays waived by the defence and delays caused solely or directly by defence conduct ( Jordan , para. 66 ). B. Step 1 – Total Delay [ 10 ] In this case, there were three dates upon which Informations were laid. The first eight-count Information was laid in Provincial Court on July 31, 2020. Four additional Informations were laid on November 26, 2020. They are as follows: a. July 31, 2020: i. 11268605: 8 counts relating to Crown Auto Sales b.

November 26, 2020: i. 11335105: 3 counts relating to Wood Motors Ford; ii. 11334905: 5 counts relating to Vector Solutions; iii. 11335005: 3 counts relating to St. Croix Auto; and iv. 11334805: 6 counts relating to World Class Auto

[ 11 ] The parties agree that the start date for calculating the delay is the date on which the Information is sworn and laid ( R. v. Doak, 2022 NBCA 48 at para. 15 ). The parties also agree that the December 8, 2021 Information was a re-filing of previous charges due to technical issues and should not be considered as a potential start date. Therefore, the starting date is either July 31, 2020, or November 26, 2020. At this juncture I digress to explain that there is disagreement between the parties as to the start date for calculating delay for all of the counts in the Indictment. This is addressed more fully below in the

section entitled “ Bifurcation of Counts”. [ 12 ] The table below outlines the Jordan timeline calculations, without any deductions: Information Sworn Date Scheduled Trial End Date Total Delay without deductions July 31 st , 2020 June 23 rd , 2023 34 months, 24 days November 26 th , 2020 June 23 rd , 2023 30 months, 28 days [ 13 ] In both scenarios the presumptive ceiling, without deductions, is exceeded. C. Step 2 – Subtracting Defence Delay [ 14 ] The parties agree that there is no delay attributable to the defence. B.

Step 3 – Exceptional Circumstances [ 15 ] As stated in Jordan , once the presumptive ceiling is breached, the onus shifts to the Crown to establish that the delay is reasonable. The Crown can rebut the presumption that the delay was unreasonable by showing there were exceptional circumstances that justify the delay. [ 16 ] In Jordan , exceptional circumstances are defined as follows: 69 Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [ 17 ] Exceptional circumstances fall under two categories: discreet events, and particularly complex cases ( Jordan , para. 71 ).

(1) Discreet Events [ 18 ] The evidence is that the preliminary inquiry was adjourned on December 10, 2021, to January 7, 2022, for argument. The parties appeared before a different judge on January 7 th , who adjourned the matter over to March 11, 2022. The reason for the adjournment was that the preliminary inquiry judge was isolating for COVID-19 as per the Public Health directive. At the appearance on January 7, 2022, the Court had suggested February 18, 2022 as the new date however, due to Crown unavailability, the matter was set over to March 11, 2022.

The Crown submits that the period from January 7 to February 18 (the proposed return date) constitutes exceptional circumstances as it is a discreet event contemplated by Jordan .

[ 19 ] In Jordan , the Court gave examples of discreet events as including medical or family emergencies ( Jordan , para. 72 ). The Crown submits that the judge’s COVID-19 isolation was an unforeseen medical development which qualifies as a discreet event for purposes of determining whether there were exceptional circumstances. The accused argues that the sickness of a judge is not an unusual occurrence and therefore does not constitute an exceptional circumstance. [ 20 ] In my view, the preliminary inquiry judge’s absence due to COVID-19 is a discreet event which qualifies it as an exceptional circumstance.

Accordingly, the delay occasioned by that event (one month, eleven days) is potentially deductible from the total delay. I say potentially, because merely identifying an exceptional circumstance is not sufficient. One must also consider whether the Crown and the justice system made reasonable efforts to respond to the exceptional circumstance and mitigate any consequent delay. The delay occasioned by the preliminary inquiry judge’s COVID-19 isolation occurred more than a year ago.

There is little in the record which indicates that either the Crown or the justice system took any reasonable steps to overcome the delay occasioned by the exceptional circumstance. [ 21 ] As mentioned, it is not sufficient for the Crown to merely identify an exceptional circumstance it must also demonstrate that it took reasonable steps to ameliorate the delay caused by that circumstance. In R. v. Ghraizi, 2022 ABCA 96 the Court stated at paragraph 12: We agree with both the trial judge and

summary conviction appeal judge that Crown counsel illness, unavailability due to the assigned Crown’s jury trial extending, and the Covid-19 pandemic were exceptional circumstances. However, identifying an exceptional circumstance is not sufficient. As the Supreme Court of Canada instructs us in Jordan , at paras 74-75 , once the ceiling is exceeded, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” and that “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance.

So too must the justice system”. [Emphasis added} [ 22 ] The Crown points to the fact that it proceeded by way of a “paper prelim” pursuant to s. 540(7) of the Criminal Code which was intended to shorten the preliminary inquiry. The Crown says this was a step taken by the Crown to move the matter along. Ultimately, it was not successful in shortening the preliminary inquiry by any appreciable amount.

However, the Crown is not required to show that the steps it took were ultimately successful, but that it took reasonable steps to avoid the delay ( Jordan , para. 70 ). [ 23 ] In my view, the Crown cannot rely on the paper prelim application as discharging its onus that it took reasonable steps to overcome the delay occasioned by the exceptional circumstance. This is because the paper prelim proceeding predated the exceptional circumstance relied upon by the Crown. I see nothing in the record where the Crown took any steps to ameliorate the delay caused by the COVID-19 isolation of the preliminary inquiry judge.

As indicated at paragraph 70 of Jordan , such steps might include resort to case management, seeking assistance from the defence to streamline evidence or issues for trial, or resorting to other appropriate procedural means. There is nothing in the record to indicate that any such steps were taken. Indeed, Mr. Cornford was committed for trial on May 31, 2022, but the Crown delayed filing the Indictment until June 28, 2022.

Had it been filed immediately, the matter may have been eligible for processing on the July Motions Day, but instead it came before this Court on the August Motions Day (August 2, 2022). [ 24 ] In my view, while the delay occasioned by the COVID-19 isolation of the preliminary inquiry judge qualifies as a discreet event, the Crown took no reasonable steps to address the delay and therefore that item of delay will not be subtracted from the total period of delay. [ 25 ] In

summary, the total period of delay remains as before: thirty-four months, twenty-four days with respect to the July 31, 2020 Information and thirty months, twenty-eight days with respect to the November 26, 2020 Informations.

(2) Case Complexity [ 26 ] Complexity is a qualitative, not a quantitative assessment. Complexity is an exceptional circumstance only where the case, as a whole, is particularly complex. The issue is whether the delay is reasonable in view of the case’s overall complexity ( R. v. Coady , 2017 SCC 31 , at para. 63-64 ). [ 27 ] In Jordan , the Court explained that the question of complexity has two aspects: the nature of the evidence and the

nature of the issues. The hallmarks of a particularly complex case, and thus the factors to be considered in determining the issue, are: - voluminous disclosure - large number of witnesses - multiple charges - several pre-trial applications - novel or complicated legal issues - numerous significant issues in dispute - multiple co-accused - requirement for expert witnesses - charges covering a long period of time ( Jordan , at para. 77 ; R. v. Zahor , 2022 ONCA 449 , at para. 105 ). [ 28 ] In this case, other than the present application, there have been no pre-trial applications.

There do not appear to be any novel or complicated legal issues in dispute. The Crown’s Pre-trial Conference Submission indicates that the sole issue for determination at trial is proof of mens rea of the accused. There are no co-accused and the Crown is not calling any expert witnesses. It its written submission the Crown indicated that there would be a large number of witnesses. However, there is no evidence as to the number of witnesses to be called.

In any event, while a large number of witness may indicate complexity it is but one factor to be considered. [ 29 ] While there are multiple charges, they do not cover a long period of time: allegedly all occurring between May and July 2019. Although there are twenty-five counts, they involve only five victims and it appears from a reading of the Indictment that there is significant factual overlap. [ 30 ] The primary arguments in favour of a finding of complexity advanced by the Crown is the length and complexity of the investigation and the volume of documentation. In his affidavit, Cst.

Van Ember stated that the warrant search netted forty banker’s boxes of documents that required the assignment of six police officers and one civilian to organize and scan the documents. This took approximately five hundred hours. It also required the correlation of the documents with vehicle registrations, bills of sale, information derived from RCMP forensic examination of computer files, and ultimately sending all this information to the forensic accounting management group for analysis. [ 31 ] According to Cst. Van Amber’s affidavit, the present case represents only half of the overall investigative file.

This case involves alleged frauds perpetrated against dealers, while another branch of the investigation involves individual customers which, according to Cst. Van Ember’s affidavit, is much more complex. [ 32 ] The document disclosure in this case is significant. Although, at forty banker’s boxes, I do not consider that to be an overwhelmingly voluminous disclosure. Nevertheless, the volume of disclosure in this case does suggest an element of complexity. It must be noted however, that while voluminous disclosure is a hallmark of complex cases, its presence is not determinative ( R. v. Coady , at para. 65 ).

While the complexity of the investigation may be an indicator that the trial itself is complex, it is not necessarily so. Similarly, the length of time required for trial may be indicative of complexity. In this case, the trial is expected to take four weeks. While this may be longer than most criminal trials, trials of this length are certainly not uncommon. [ 33 ] It must be remembered that the presumptive ceiling set in Jordan already accounts for the increased complexity of criminal cases.

Therefore, the Crown must demonstrate that this case is particularly complex ( Coady , at para. 63 ). [ 34 ] Having considered the circumstances of this case against the hallmarks of complexity identified in Jordan , I am not satisfied that the Crown has demonstrated that this is a particularly complex case. Accordingly, the Crown has failed to rebut the presumption that the delay in this case was unreasonable. C. Bifurcation of Counts

[ 35 ] As noted earlier, the accused was charged with offences on two different dates: July 31, 2020, and November 26, 2020. The charges were consolidated into one Indictment, which is before this Court. Had I deducted the one month, eleven-day delay attributed to the preliminary inquiry judge’s isolation due to COVID-19, the charges relating to the Informations laid on November 26, 2020 would have been below the presumptive ceiling (at twenty-nine months, seventeen days’ delay).

The Crown submits that the accused was “charged” with the alleged offences on the first Information on July 31, 2020, while he was not yet “charged” with the remaining counts on the latter four Informations until November 26, 2020. The Crown submits that the Court should conduct the Jordan calculus separately, according to the dates upon which the accused was “charged”. [ 36 ] Counsel for the accused, on the other hand, submits that where Informations are joined into a single indictment, the starting point for the calculation of delay is from when the first Information was laid.

In support of its position, the accused relies upon R. v. Dhaliwal , 2020 ONCJ 600 ; R. v. Rea , 2018 ONCJ 425 ; R. v. Mengistu , 2022 ONSC 3624 ; R. v. Brown , 2019 ONSC 6689 ; and R. v. Gharibzada , 2022 ONSC 4667 . [ 37 ] By way of rejoinder, the Crown submits that the authorities cited by the accused, and their underlying case law, are distinguishable from the facts in this case. Further, the Crown submits that there is a lack of uniformity in the case law and points to R. v. Morrish , 2020 ONCJ 225 and R. v.

Beardy , 2021 MBQB 277 as examples where courts came to conclusions opposite to that in the cases cited by the accused. [ 38 ] Counsel for both the accused and the Crown agree that this issue has not been considered by any New Brunswick court. I have concluded that, regardless of whether one considers the July 31, 2020 Information or the November 26, 2020 Informations as the start date, the Jordan presumptive ceiling is exceeded. It is therefore not necessary for me to determine the question of bifurcation for purposes of the Jordan calculus.

Given that this would be a matter of first impression for the judiciary of this province, I am not inclined to address it in the context of a hypothetical. Consideration of the issue is not necessary to my decision and, in the circumstances, I decline to do so. V. CONCLUSION [ 39 ] In Jordan , the Supreme Court of Canada made clear its determination that complacency toward delay in the justice system cannot be tolerated. All actors in the justice system, including the Crown, the defence and the court, have a responsibility to ensure that an accused is tried within a reasonable time.

Since Jordan , the Supreme Court has been steadfast in its determination to deal with delay. In a paper recently delivered at the National Judicial Institute Jury Trial Seminar, 2022, Justice Fred Ferguson of this Court made the following observation: What is striking about the judgments rendered by the Supreme Court since issuing its decision in Jordan in 2017 is that, first, the Court has entertained a number of appeals on this subject beyond what might have been expected, and, second, it has firmly “held the line” on the 18 and 30 month ceilings.

When the two observations are linked they provide insight into the seriousness with which the court has taken unacceptable delay in criminal proceedings in this country. [ 40 ] The presumptive ceiling set out in Jordan has been breached in this case, resulting in an unreasonable delay such that the accused’s right to be tried within a reasonable time under

section 11(

b) of the Charter has been violated. The Application by the accused is granted and the charges against him are hereby stayed pursuant to s. 24(1) of the Charter . ______________________________ Terrence J. Morrison, J.C.K.B.