R. v. Marstar Trading International Inc.

R. v. Marstar Trading International Inc. Collection Decisions of the Court of Appeal Date 1999-07-12 Docket numbers C27561, C28021 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Rosenberg, Marc Subject Criminal Decision Content DATE: 19990712 DOCKET: C27561 and C28021 COURT OF APPEAL FOR ONTARIO ABELLA, LASKIN and ROSENBERG JJ.A. BETWEEN: ) ) Lisa Futerman, HER MAJESTY THE QUEEN ) for the appellant ) Appellant ) ) - and - ) John Hale, ) for the respondent MARSTAR TRADING INTERNATIONAL ) INC. and JOHN ST-AMOUR ) ) Respondents ) Heard: June 8, 1999 ) On appeal from the judgment of Judge Gilles Renaud dated August 5, 1997 ROSENBERG J.A.: [1] The Crown appeals the stay of proceedings entered by Renaud Prov. Ct. J. with respect to multiple charges contrary to the Customs Act and the Export and Import Permits Act. The trial judge found that the rights of both the individual respondent and the corporate respondent as protected by s. 11(b) of the Canadian Charter of Rights and Freedoms were infringed. I have concluded that the appeal should be allowed in relation to the corporation but the appeal of the stay of proceedings against Mr. St-Amour should be dismissed. [2] The history of these proceedings begins with the execution of search warrants at the respondents’ place of business and Mr. St-Amour’s home on March 13, 1995. The execution of the warrants attracted a great deal of attention. The respondents are international arms merchants and the police raid was carried out with the assistance of a SWAT team and a military- style helicopter. This raid had an immediate impact on the respondents’ ability to carry on their business. The respondents retained counsel who corresponded with the federal prosecutor, urging the prosecutor to lay charges as quickly as possible so that the respondents’ legal position could be resolved. Throughout the proceedings, the respondents repeatedly asserted a desire to resolve their legal situation as quickly as possible. [3] On May 23, 1995, charges were laid against the respondents under the Export and Import Permits Act and the Customs Act. The police also laid charges against Mr. St-Amour and his wife under the Criminal Code in respect of the careless storage of certain firearms in their home. Mr. Radford, counsel for the respondents and Mrs. St-Amour, immediately made a request for disclosure, indicated that he had instructions to proceed without delay, and sought a pre-trial conference as soon as possible. The respondents and Mrs. St-Amour appeared in court on June 14, 1995 and the matters were adjourned for two weeks to permit the Crown to make disclosure. In fact, disclosure in the form of fourteen volumes of documents was not made until July 21, 1995. The cases were, however, at that point ready to proceed. Disclosure had been made, counsel had been retained, and a judicial pre-trial was scheduled for September 8, 1995. Not quite two years later, on August 5, 1997, the trial judge stayed the proceedings against the respondents because of unreasonable delay. [4] It is not necessary to provide a detailed chronology of the events between September 1995 and August 1997. It is only necessary to deal with certain parts of the chronology that are important to the Crown’s arguments. Attributing certain delay to the Crown [5] The September 8, 1995 pre-trial was adjourned at the request of the Crown. Because of scheduling problems for the pre-trial judge, who ultimately became the trial judge, the pre- trial was not held until November 20, 1995. The appellant argues that this delay is of no moment, and should not be counted against the Crown because Mr. and Mrs. St-Amour did not retain counsel on the criminal charges until October 23, 1995. I do not agree. It was clear that counsel, acting initially for the respondents and Mrs. St-Amour, was prepared to deal with all of the charges at the pre-trial on September 8, 1995, and he made it clear that the respondents and Mrs. St-Amour wanted the matter to proceed as quickly as possible. The trial judge properly attributed at least the delay from September 9, 1995 to October 22, 1995 to the Crown. The length of systemic delay [6] The trial judge found that there was systemic or institutional delay of 25 months. The appellant concedes a total systemic delay of only 14-½ months. The difference between the view of the trial judge and the view of the appellant rests primarily on the effect of a series of decisions made by the parties in the conduct of the proceedings. Counsel for the respondents and Mrs. St-Amour asked that the Criminal Code charges proceed before the other charges, because delay in prosecuting the Criminal Code charges was causing greater prejudice to the accused. Also, all counsel agreed that the pre-trial judge should be the trial judge because he had become familiar with this relatively complex case in preparation for the pre-trial. I will examine these two principal issues below. However, some of the other arguments of counsel can be dealt with first. [7] The appellant argues that the trial judge erred in attributing the delay from October 23, 1995 to November 20, 1995 to systemic delay. This delay arose from the inability of the judge to attend because of other more urgent commitments that intervened. The appellant submits that this delay was really due to the respondents’ delay in retaining separate counsel, Mr. Martin, for the criminal charges. I do not agree. In his letter of October 19, 1995, Mr. Martin indicated that he wished to have a separate pre-trial after October 30th to deal with the criminal charges. There is no indication that the pre- trial in relation to the Export and Import Permits Act and the Customs Act could not have proceeded as scheduled. To the contrary, in the letter Mr. Martin indicated that Mr. Radford would be attending the pre-trial on October 23rd and would be able to set a date for a separate pre-trial on the criminal charges. Mr. Martin observed correctly that the issues respecting the criminal charges “could be dealt with more expeditiously than the issues Mr. Radford is dealing with”. I have not been persuaded that the trial judge erred in attributing this delay to systemic factors. [8] Counsel for the appellant submits that the trial judge erred in attributing the entire period from July 18, 1995 to January 16, 1997 to systemic delay rather than to the inherent time requirements of the case. She argues that this period of almost eighteen months should be considered neutral because it was needed for the complex application by the respondents to exclude evidence as a result of an unreasonable search and seizure. No doubt, some period was justified by the inherent time requirements of the case, and is properly attributable to poor time estimates for the length of time needed to argue the motion. However, I have not been persuaded that the trial judge erred in attributing most of this time to systemic delay. [9] The principal difficulty in this case is that the provincial court system in the jurisdiction was so burdened with serious cases that any miscalculation in the length of time needed to complete a matter had a profound effect on the system’s capacity to try the case. The court administration had limited flexibility to find time for the continuation or completion of a case. In his lengthy reasons, the trial judge reviewed the factors that resulted in the court taking eighteen months to resolve the search-and-seizure motion. Those factors included the workload in the jurisdiction and the lack of adequate judicial resources. They combined to deprive the court of any ability to deal expeditiously with a matter that could not be completed within the initially assigned time. This was largely a systemic failure. [10] In R. v. Morin, [1992] 1 S.C.R. 771, the court dealt extensively with the question of systemic or institutional delay. Sopinka J. laid down certain guidelines for tolerable systemic delay. He noted, however, that those guidelines would have to be adjusted bearing in mind a number of factors, such as prejudice, especially from pre-trial custody, and having regard to local conditions. Whether the systemic delay exceeded permissible limits contributing to an unreasonable delay was first a question for the trial judge. Sopinka J. wrote as follows at pp. 799-800: These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The Court of Appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province. [11] Sopinka J. also made it clear that the government must be given some leeway with systemic delay where the jurisdiction is experiencing an unusual strain on its resources. In R. v. Morin, the court was concerned with a case that arose in a district that was experiencing an unusual and rapid growth in population. Even allowing for that unusual factor, the court considered that a period of eight to nine months was a reasonable guideline for systemic delay in the provincial court. An unusual increase in population is a matter over which the government may have very little control, and no doubt it must be given a reasonable period of time to respond. The delay in this case seems to have resulted partly from a change in enforcement policies. The government must also be given a reasonable time to respond to this change of circumstance. However, since this is a matter over which the government has a greater control, the courts are entitled to subject this factor to greater scrutiny. [12] Some deference must be paid to the view of the trial court on the impact of local conditions and changing circumstances. In this case, the trial judge has provided substantial information on the cause of delay and the reasons for the system’s inability to cope properly with the case within a reasonable time. I have not been persuaded that the trial judge misperceived his function or that he erred in attributing the delay to systemic or institutional conditions. Nor have I been persuaded that he was wrong to find that the delay exceeded what is reasonable, even given the particular conditions that overtook the provincial court in that region. [13] Closely associated with the previous submission is the appellant’s argument that the trial judge failed to take into account both the effect of the decision by all parties to have the pre-trial judge become the trial judge, and the respondents’ desire to have the Criminal Code charges dealt with first. I do not agree. The record discloses that even if another trial judge from Ottawa had been assigned to the case, this would not have materially reduced the delay. As to the desire of the respondents to deal with the Criminal Code charges first, this was a reasonable way of proceeding, and I fail to see how that decision impacted upon the delay in trying these charges. As I understand the record, the respondents were simply asking that the Code charges proceed immediately before the other charges. That method of proceeding would not have delayed the proceeding, but for the inability of the system to cope with this case. Prejudice [14] The appellant’s final argument concerns prejudice. Concerning Mr. St-Amour, counsel for the appellant submits that the trial judge confused the prejudice attributable to the mere fact that the charges were laid with the prejudice from the delay. In the course of his reasons, the trial judge said, “In these unusual circumstances, I am of the view that the notoriety of the proceedings resulting [sic] in a ‘merger’ of both types of prejudice.” In my view, when the trial judge’s reasons are considered as a whole, he did not misapprehend the prejudice to Mr. St-Amour. In R. v. Morin at pp. 801-03, Sopinka J. discussed the proper approach to measuring prejudice from delay in the case of an individual accused. With respect to inferred prejudice he said, in part, as follows at pp. 801- 02: We have decided in several judgments, including the unanimous judgment in Smith, supra, that the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. In the American concept of this principle, expounded in Barker v. Wingo, the inference is that no prejudice has been suffered by the accused unless he or she asserts the right. While the observation of Dubin C.J.O. in Bennett that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11(b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires or practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined. … As also noted by Cory J. in Askov, supra, "the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused" (p. 1222). This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. [15] This is not a case where the accused attempted to avoid a speedy trial. To the contrary, from the moment the search warrant was executed, they demonstrated a desire to have the charges dealt with expeditiously, because of prejudice. The trial judge could properly infer prejudice to Mr. St-Amour in the circumstances. [16] There was also a basis upon which he could find that the respondent had shown actual prejudice. With respect to proof of actual prejudice, Sopinka J. held as follows at pp. 802-03 in Morin: Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. in Mills, supra, at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence. Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. [Emphasis added.] [17] There was evidence that the delay in prosecution caused prejudice to Mr. St-Amour’s security interest in the manner described by Sopinka J. In my view, the trial judge’s comment about the “merger” of the prejudice arising from the manner in which the investigation commenced and the prejudice from the delay must be understood in this light. It only stands to reason that the more public the investigation, the greater the ongoing stress or damage to reputation as the prosecution drags on. [18] However, I take a different view of the prejudice to the company. In R. v. CIP Inc., [1992] 1 S.C.R. 843, the court held that a corporation cannot rely upon a presumption of prejudice or inferred prejudice. A corporation must be able to establish that its fair trial interest has been irremediably prejudiced. The trial judge made no finding that the respondent corporation’s fair trial interest was prejudiced. In my view, in the absence of such a finding the corporate respondent has not established a violation of its right under s. 11(b) of the Charter. [19] Counsel for the respondent argues that the corporation involved in this case should be accorded different treatment, and that the holding in CIP Inc. has no application because this is a one-person corporation. He argues that in these circumstances, delay in trying the corporation affects the security interests of the individual owner and that, therefore, the court is entitled to find or infer prejudice. I do not agree. Section 11(b) is a personal right. Prosecution of any accused may have collateral effects on other persons such as members of the accused’s family. However, the protected right is that of the accused. [20] Furthermore, in principle, I cannot see a basis for distinguishing between private and public corporations. The owners or shareholders choose to conduct and arrange their affairs through use of the corporate vehicle. That choice has certain advantages, even in criminal proceedings. In the prosecution of a corporation, only the corporation can be punished, although criminal liability is attributed to the corporation because of the acts of its directing minds. I agree with the following statement of Twaddle J.A. in R. v. Deslauriers (1992), 77 C.C.C. (3d) 329 (Man. C.A.) at 340: I see no reason to distinguish between corporations which are public and those which are private for the purpose of determining when a violation of the corporate right to a trial within a reasonable time has occurred. The right belongs to the corporation: not its members or agents. The effect of delay on the individual persons responsible for the allegedly criminal activity will likely be much the same whether the corporation is public or private. Those who incorporate private corporations do so to gain certain advantages such as limited liability for its members and a distinction between the corporation and its members for tax purposes. It seems to me that those who use the corporate shield for some purposes cannot shed it for others. In my view, the Charter confers no right on an individual to security of the person from the consequences of a delayed prosecution against a corporation of which the individual is an agent or a member. DISPOSITION [21] Accordingly, I would allow the appeal from the stay of proceedings for Marstar Trading International Inc., set aside the stay of proceedings, and remit the matter for trial. I would dismiss the appeal concerning John St-Amour. (signed) "M. Rosenberg J.A." (signed) "I agree R. S. Abella J.A." (sgned) "I agree J. I. Laskin J.A." RELEASED: July 12, 1999