R. v. Colpitts, 2017 NSSC 228

SUPREME COURT OF Nova Scotia Citation: R. v. Colpitts, 2017 NSSC 228 Date: 2017-08-22 Docket: CRH No. 346068 Registry: Halifax Between: Robert Blois Colpitts and Daniel Frederick Potter Applicants/Defendants v. Her Majesty The Queen Respondent TIMING AND ORDER OF CHARTER APPLICATIONS AND CLOSING SUBMISSIONS Judge: The Honourable Justice Kevin CoadyOral Decision: August 21, 2017 in Halifax, Nova ScotiaWritten Decision: August 22, 2017 Counsel: R. Blois Colpitts, Self-Represented Brian H. Greenspan and Jane O’Neill, Q.C., for Daniel F.

Potter James Martin, Mark Covan and Scott Millar, for the Respondent By the Court: [1] There are two tasks remaining in this proceeding. One is a “Jordan” application and the other is the ultimate question as towhether the Crown have proven the charges against Messrs. Potter and Colpitts beyond a reasonable doubt.

Prior to specificallyaddressing the issues in this application, some context will be helpful: • The charges directed against these Defendants allege they acted with others to manipulate the price of Knowledge House Inc.(KHI) shares on the Toronto Stock Exchange between January 1, 2000 and September 13, 2001. • A Direct Indictment was filed on March 17, 2011 and the trial proper commenced on November 16, 2015.

The first three and one-half years were consumed with a wide variety of pre-trial applications. • One such application was the Defendants’ request for a judicial stay of the proceedings based on pre and post-charge delay. Thatapplication was heard between April 20, 2015 and July 10, 2015. It proceeded as directed by R. v. Morin, (SCC), [1992]1 S.C.R. 771 and Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863. The application was dismissed at 2015 NSSC 224. • Subsequent to the above-referenced ruling, the Supreme Court of Canada released R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017SCC 31.

These rulings significantly altered the law respecting post-charge delay. • The trial proper has taken 150-plus days to complete the testimony. The Crown and Mr. Colpitts have closed their cases. Mr.Potter elected not to call evidence on August 8, 2017. This trial has heard from over 75 witnesses and has received 184 exhibits which include many thousands of documents. Much of the

testimony is highly technical. Describing this trial as complex and unique would be a gross understatement. [2] On February 7, 2017 Messrs. Potter and Colpitts advised they would be bringing a second delay application based on theprinciples set out in R. v. Jordan, supra. They argued I should stop the trial in order to hear and decide their delay application. TheCrown took the position the stay application should be heard at the end of the trial.

In my decision at 2017 NSSC 40 I concluded “thereis no doubt in my mind that the best way forward is to continue with the trial and to deal with these applications at the end of this trial.” I then added, “in time, I will have discussions with counsel and Mr. Colpitts as to the logistics of proceeding in this fashion.” [3] The “logistics” have become an issue between the Crown and Defence. The Defendants submit I should adjourn trialsubmissions until after the Charter motions have been heard and determined. The Crown’s response is that I hear and decide both issuestogether. Mr.

Potter’s counsel suggests the Crown’s position “is both constitutionally and jurisdictionally unsound.” His support for thisstatement is found at paragraph 3 of Mr. Potter’s brief: A stay of proceedings amounts to an acquittal and is a final disposition of a matter, after which, no further order can be made by theCourt. The Court is functus. Accordingly, if the motion for a stay of proceedings is granted, the matter is at an end and Mr. Potter hasall the benefits of an acquittal. It is not then possible for the Court to ‘provisionally’ rule that Mr.

Potter was either guilty or not guilty ofany substantive offence. Mr. Potter also argues the delay application should be heard before he is required to expend the resources necessary to address themerits. [4] Mr. Colpitts supports the positions advanced by Mr. Potter.

He states at paragraph 3 of his brief, “I am requesting that themotion brought in February, 2017 be heard and determined before I am required to expend the considerable resources necessary toaddress the merits of the case.” [5] Generally I prefer the approach advanced by the Crown in that it is the most expeditious way to conclude a trial of this lengthand complexity.

Ruling on both issues together would avoid a problem I envisaged in my scheduling ruling (2017 NSSC 40) atparagraph 8: It is conceivable that if these Applications were successful and then overturned on appeal, the reviewing Court would be left with noindication of what the outcome of the trials on the merits would have been and this could result in a complete re-trial. Given the timerequirements and complexity of this prosecution, such would be a very troublesome scenario.

My approach will be as follows: If I first decide the delay issue in favor of the Defendants, I would then make a finding on the merits inthe alternative. If guilty is the appropriate outcome, no convictions would be entered and a stay would be ordered. Should the delayapplication fail then I would rule on the merits as I would in any other trial. It is also foreseeable that I could decide the merits first and,if the result was guilty, it would be subject to my ruling on the delay application. [6] I am satisfied that I have the authority to proceed as outlined herein. In R. v.

Bordo, 2016 QCCS 477 the Court stated that atrial judge has a duty to manage the trial process while balancing fairness to the parties. In R. v. Auclair, 2013 QCCA 671 the Courtstated that in large, complex cases a judge’s role should not be limited to that of a mere arbiter allowing the parties to conduct their caseas they see fit. Clearly this scheduling decision is highly discretionary. [7] R. v. Mack, (SCC), [1988] 2 S.C.R. 903 is an example of finding on the merits and then applying theentrapment outcome to the result which, if successful, leads to a judicial stay.

While the Defendants argue “the remedy of a stayfollowing an entrapment motion is the exception, not the rule” and that “entrapment is not a conventional defence”, the approach isconstitutionally permissible. [8] R. v. Waring, 2016 ABQB 236 was a drug prosecution which resulted in Mr. Waring’s conviction. Subsequently, Mr. Waringlearned that two of his former co-accused succeeded on their s.11(

b) applications. In advance of sentencing, Mr. Waring filed a s.11(b)delay application. The point of this case is that after finding Mr. Waring guilty, Justice Gates went on to consider the delay issue. [9] In R. v. Purchase, 2012 BCSC 208 the accused brought a s.11(

b) application for delay following his conviction for traffickingmarijuana. Justice Brown had no concerns about deciding the delay issue following a verdict. He offered the following comments atparagraph 129: He brought his 11(

b) application after his conviction, at a time initially fixed for sentencing. However, as the Newfoundland Court ofAppeal stressed in R.C., the accused’s right to be tried within a reasonable time is a Charter right that can be advanced at any time up toand including sentencing. [10] In R. v. Topham, 2015 BCSC 1185 the accused wanted a constitutional issue heard in advance of the trial. Justice Butler citedJustice Sopinka’s words in R. v.

DeSousa, (SCC), [1992] 2 SCR 944 wherein he affirmed the discretion of the trialjudge to rule on pre-trial motions before trial or at the conclusion of the trial, subject to two policy considerations. . . . The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. Thispolicy is the basis of the rule against interlocutory appeals in criminal matters. See Mills v. The Queen . . . The second, which relates toconstitutional challenges, discourages adjudication of constitutional issues without a factual foundation.

See, for instance, Moysa v.Alberta (Labour Relations Board) . . . and Danson v. Ontario (Attorney General) . . . Both these policies favour disposition ofapplications at the end of the case. In exercising the discretion to which I have referred the trial judge should not depart from thesepolicies unless there is a strong reason for so doing. The message is that some motions will require immediate determination while others are more efficiently determined as pre-trialmotions or post-trial motions.

[11] R. v. Fast, 2016 ONSC 6426 is a post-Jordan case. Justice Leach directed that a s.11(

b) application be heard at the end of thetrial and his decision on the merits. He stated at paragraphs 17-19: [17] In the context of s.11(

b) applications brought mid-trial, special measures accordingly may be required to achieve, to the extentpossible, planning and efficiency goals reflected in the provincial practice direction. [18] However, authorities have emphasized that the bringing of a s.11(

b) application mid-trial raises additional considerations andconcerns in any event. [19] In that regard, I have considered authorities such as the following: R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, atpages 953-954; R. v. La, (SCC), [1997] 2 S.C.R. 680, at paragraph 27; R. v. Salisbury (2012), 2012 SKCA 32 ,385 Sask.R. 322 (C.A.) at paragraphs 96-97, (where our Court of Appeal approved and followed the Saskatchewan Court of Appealdecisions in the Salisbury and Wilson decisions).

In my view, those authorities confirm general principles which include the following: • There is no set or single procedure for the determination of Charter violations and relevant remedies. The appropriate procedureand process will depend on the particular circumstances of the case, taking into account all of the relevant factors. There will besituations where a Charter breach needs to be dealt with immediately, and in other situations redress can wait until matters areadjudicated at trial.

There are no hard and fast rules, nor would it be possible to set such rules. • Where an application is brought during the course of a trial, the determination of the appropriate procedure is within the discretionof the trial judge, who generally has a great deal of discretion in the conduct of any trial, including the timing of the hearing anddisposition of any motions. In particular, a trial judge must be able to control the trial proceedings so as to ensure fairness to allconcerned, and to preserve the integrity of the trial process.

He or she therefore has the discretion to hear and decide an application for astay immediately, or to hold the matter in abeyance until the conclusion of the trial on the merits. I find this case as strong authority for the approach I have previously outlined. [12] R. v. A(D) (ON CA), [1992] O.J. No. 1850 (Ont. C.A.) was a case of historical sexual assaults on threevictims. After a trial of eight days the trial judge stayed seven counts and acquitted on three counts. The Crown appealed the stays.

Chief Justice Dubin offered the following analysis at paragraphs 33-34: 33 Although the learned trial judge erred in directing counts 4 to 11 be stayed, I do not think that this would be a proper case to direct anew trial. Having heard all of the evidence, the learned trial judge should have proceeded to determine the guilt or innocence of therespondent on record before him. However, if he had done so, it is quite apparent from his ruling that he felt that without additionalevidence he could not resolve the conflicts in the evidence.

I, therefore, cannot help but infer that, in all probability, if he had dealt withthe case in the manner that he should have, he would have found the respondent not guilty on counts 4 to 11. 34 In the result, therefore, I would set aside the order staying counts 4 to 11 and would enter a verdict of not guilty on each of them. This is good authority for the “in the alternative verdict” discussed earlier in this decision. [13] R. v. Reeve [2004] O.J. No. 3538 (Ont. C.A.) was a by-law prosecution in which a Justice of the Peace entered stays for abuseof process.

Over a year later she issued further reasons in which she held that the Defendants had not proved a legal, non-conforming useand she convicted on all counts. At the first appellate level the Court held that once the Justice of the Peace had granted a stay, she lostjurisdiction to consider the charges on their merits. He ordered a new trial and both sides further appealed. In supporting the Justice ofthe Peace Justice Laskin commented at paragraphs 26-27: 26 The justice of the peace’s reasons do not disclose her intent.

She does not say that the stay was intended to last only until she dealtwith the defendants’ guilt or innocence. Nor does she suggest that her reasons for conviction were intended to supplant her stay order. However, a benign view of what she did was stay the prosecution as an abuse of process, but because she heard all the evidence, makefindings on the merits. Therefore, if a reviewing court found she had erred in granting a stay, it would have the benefit of her findings onthe evidence. 27 This court’s judgment in R. v. A.(D.) (1992), (ON CA), 76 C.C.C. (3d) 1 at 9 supports what the justice of thepeace did.

In R. v. A.(D.), this court held that the trial judge had improperly stayed eight of eleven counts against an accused. The trial judge hadheard all the evidence and had acquitted the accused on the other three counts. Dubin C.J.O., writing for this court, held that ‘(h)avingheard all the evidence the learned trial judge should have proceeded to determine the guilt or innocence’ of the accused on the stayedcounts. Implicit in Dubin C.J.O.’s reasoning is that a trial judge does not necessarily lose jurisdiction to decide the merits of a case afterstaying the proceedings.

Here, though preferably the justice of the peace should have dealt with the stay and her findings on the merits atthe same time instead of over a year apart, following R. v. A.(D.) I would hold that she did not lose jurisdiction to make findings on themerits. [14] The Defendants rely heavily on R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128 to argue I am precluded from ruling onboth the motion and the merits contemporaneously. Their position is stated at paragraph 3 of Mr. Potter’s brief which I have earlierreferenced.

This position suggests that if I entered a stay on the delay motion, and then ruled on the merits, that I would be entering both a stay and averdict. That is simply not the case. If I were to review the merits first, any findings would be subject to my ruling on the delay motion. If I were to rule on the stay motion first and entered a stay, any review of the merits would stop short of entering convictions oracquittals. [15] If this prosecution was relatively straightforward and shorter than is the case, the Defendants’ position might be more

plausible. The demands of this case require that I rule on both issues. An appeal is a real possibility given the history of this case. If Iwere to grant a stay without a review of the merits, a reviewing Court would find itself in a difficult spot should it overturn the stay. There are over 500 post-Jordan decisions that, for the most part, deal with transition cases. This is a complex and evolving area of thelaw. If I were to err in granting a stay, the only option available to the reviewing Court would be to order a new trial.

If I were toprovisionally decide the merits, my ruling could be scrutinized and, if the reviewing Court agreed with my conclusions, a second trialwould be unnecessary. [16] The Defendants also argue that proceeding contemporaneously will result in increased emotional and financial costs to them. However, if the case was sent back for a re-trial, the costs of that result would far exceed the costs of addressing the merits as outlinedherein. In essence, such an approach will limit their costs. [17] The Defendants also argue that a provisional ruling on the merits will result in an undeserved stigma.

If such a stigma were tooccur, it would relate to the fact of prosecution and not to a conviction. As stated in R. v. Jewitt, supra, a stay is tantamount to anacquittal. A provisional ruling on the merits will not disturb the presumption of innocence. [18] The Defendants also advance R. v. Regan, (NSSC) in support of their position. I have not found thatauthority helpful, as it is essentially a review of the principles enunciated in R. v. Jewitt, supra, and their application to similar actjurisprudence. [19] The Defendants also advance R. v. Byron, 2001 MBCA 81 in support of their position.

The facts of this case are succinctlystated at paragraph 3: The three accused each brought a motion for pre-trial delay. After hearing argument the trial judge reserved his decision and proceededto hear a four-week trial. At the completion of trial, the trial judge ruled in favour of the accused on the delay motions and ordered ajudicial stay of proceedings. However, he went on to state that should his decision be successfully challenged, he would have found theaccused guilty of certain of the charges.

The trial judge recognized that his approach was unusual and he stated the following at paragraph 13: I followed this course, which is a little unusual, and I’m not familiar with, myself, any other case where this has been done. In civilcases, we frequently make alternative findings and alternative judgments but not often in criminal cases. But as I said, I’ve taken thiscourse of action because of the delay that has occurred ‘til now in getting this matter on for trial and for completion and the interests ofjustice simply demand that these proceedings reach their conclusion now.

If I am wrong in my decision on the delay motions, appellatejurisdictions will have my decision on the evidence before them to dispose of these charges without further delay, if they wish. The Manitoba Court of Appeal was asked to comment on the procedure adopted by the trial judge. Justice Steel’s comments appear atparagraphs 21-22: Nonetheless, there was no reason that the motions could not be disposed of after argument was complete. Notice of the motions forunreasonable delay was given ahead of time. Counsel for the accused had filed and served the delay motions several weeks before thebeginning of the trial.

Written briefs were filed as well as books of authorities. The trial judge could have adjourned for a few days if itwas necessary in order to consider his decision. Or he could have allowed the trial to continue for a few days until he had made up hismind. Instead, he deliberately allowed the month-long trial to continue to its conclusion for the purpose of making alternative verdicts. It is not in the best interests of an accused, nor the state’s, to go through unnecessary trials.

From the point of view of an accused, theymust incur the legal expenses of the trial as well as other expenses related to travel and loss of wages. They also have the stigma of thefindings of guilt. Both could have been avoided had a decision been made at the close of argument. From the point of view of the state,there is a public policy advantage in avoiding unnecessary trials. With a timely ruling on the motion, victims and witnesses could haveavoided involvement in the process and costs would undoubtedly have been saved throughout.

The Court further commented at paragraph 24: A trial judge has a great deal of discretion in the conduct of any trial, including the timing of the hearing and disposition of anymotions. A trial judge must be able to control the trial proceedings so as to ensure fairness to all concerned and to preserve the integrityof the trial process. It is not the intention of this judgment to add any procedural strait jackets to that discretion.

There is no singleprocedure that must always be employed in resolving the applications under s.24(1) of the Charter. ‘Accepting that this court cannotanticipate every eventuality, I would prefer to leave the resolution of how to proceed in a particular case to the good sense of counsel andthe discretion of the trial judge.’ (R. v. Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289 at 303 (Ont. C.A.) and see alsoR. v. L. (W.K.), (SCC), [1991] 1 S.C.R. 1091, per Stevenson J. at 1130.) These remarks, taken as a whole, hardly amount to a stinging rebuke of the process followed by the trial judge.

At most, the caseadvances a best practices approach with the caution that “the ideal is not always possible”. Conclusion [20] In conclusion, I find ample authority to exercise my discretion in proceeding to hear the delay motion and closing remarkscontemporaneously and to decide both of these issues as I see fit. Coady, J.