In July 2016, the Supreme Court of Canada placed a big limitation on the ability of fraud victims to obtain justice through the Canadian criminal justice system with the release of the decision of R. v. Jordan.

In R. v. Jordan, the Supreme Court of Canada put restrictions on the opportunity to have criminal cases adjudicated on the merits by declaring that a criminal case must be heard within an arbitrary time limit or the case will be stayed by reason of infringing an accused’s section 11(b) Charter right to have a trial within a “reasonable time”. Most fraud victims we deal with are of the view that if their criminal complaint is not adjudicated on the merits, and if a restitution order is not issued, there is no justice. In the Jordan case, the majority of the judges of Supreme Court of Canada put the Charter rights of an accused ahead of the rights of victims, bringing into question whether the justice being issued is really “reasonable”.

A brief legal analysis of the R. v. Jordan case follows below, but to understand the implications of the decision, fraud victims should review the following press releases:

Hundreds of Financial Crime Prosecutions Could be Stayed, Senator Says

Published by Dan Fumano on September 20, 2016

Charles Kamal Dass, who was a registered investment adviser in Port Alberni, was charged with 15 counts of theft, fraud and forgery, based on transactions with 13 individuals and two corporations between 2000 and 2007, the court heard.

All charges have now been stayed because of what a judge called an unreasonably long wait for a trial. No allegations were proven in court.

One of the complainants, George Haack, said that the staying of criminal charges had shaken his faith in the justice system.

Canadian Senator George Baker, Deputy Chair of the Standing Senate Committee on Legal and Constitutional Affairs, said: “You’ll note now that every judge who throws a case out highlights the ‘culture of complacency.’”

Fraud cases could be among the most likely cases to be dropped, Baker said, along with drug-trafficking cases, due to the complex nature of such investigations, including many search warrants and forensic analysis.

Baker said: “These are complicated cases that take long periods of time and if you have a culture of complacency in the courts – which we do have, according to every judge, every court. If this complacency doesn’t disappear, then it’s going to be a great time for criminals because they’ll just be released because time will have run out.”

Asked to estimate the number of financial fraud cases that could be stayed after the Jordan decision, Baker said: “There could be hundreds.”

For the rest of the story, see Vancouver Sun.

Fraud Trial Delays: Ex-Security Agency Owner Luigi Corettie Won’t Be Tried

Superior Court Judge France Charbonneau on Thursday released businessman Luigi Coretti from all charges after the Crown issued a request for a stay of proceedings.

Coretti faced charges of fraud and forgery in connection with the accounting operations of his security agency, BCIA. The charges dated back to 2012. His lawyer filed a motion to stay the proceedings on the heels of the Supreme Court of Canada’s Jordan decision.

The trial was scheduled to take place in 2018, six years after Coretti was arrested. He had been at the heart of corruption news when he was alleged to have loaned a credit card to former minister Tony Tomassi, who used it for personal reasons.

Tomassi pleaded guilty in 2011 to a charge of fraud in this case. He used the card for gasoline, even though he had a travelling allowance as an elected member of the National Assembly.

The charges against Coretti were not tested in court.

For the rest of the story, see Montreal Gazette.

Charges Stayed After Lengthy Delays in Alleged TTC Fraud Case

Justice John Moore agreed with applications from the defence that argued the time it had taken to get the men to trial was unreasonable.

A provincial judge has stayed the charges against three men accused in a fraud and conspiracy case that shook public confidence in the TTC, after handing down a ruling that slammed the “frustratingly glacial” pace of the prosecution and determined that lengthy delays in the case had violated the trio’s charter right to a speedy trial.

The charges against all six stemmed from allegations laid out in a 2014 court document called an information to obtain a search warrant (ITO), in which police alleged that, between 2008 and 2013, TTC employees improperly billed the commission for more than $100,000 in fraudulent purchases that included trigger locks for firearms, decorative front door handles, folding knives and expensive tools for an auto body shop.

Between them, the six men were charged with a range of offences alleged to have taken place between 2008 and 2014 and included fraud, theft, breach of trust, conspiracy and possession of stolen property.

The allegations in the ITO were not tested in court.

For the rest of the story, see The Toronto Star.
A sampling of other press releases related to financial crime cases

Ontario court delays threatening 6,000 criminal cases, Conservatives say (The Toronto Star)

Quebec court delays lead to cases against alleged Hell’s Angels being dropped (CBC News)

‘No justice’ for victims when court cases tossed by delays, lawyer says (CBC News)

Ontario tries to stop criminal charges being stayed by trial delays (CBC News)

Four-year-old Ottawa romance fraud case latest to be tossed for trial delay:

Published on: December 9, 2016

Friday’s decision to stay the fraud case against Kevin Bishop left his alleged victims frustrated and angry. MacArthur shook her head as the judge read his decision, but outside of court she said she wasn’t surprised.
“I understand that the judicial system is throwing out cases to make a point, but I say shame on all of them,” said MacArthur, who was flown to Ottawa from her current home in Central America to testify at the trial.
Two other women were also scheduled to testify in the trial and provide similar evidence in the case based on their own unhappy experiences with Bishop, an Ottawa contractor who met women through the dating website Plenty of Fish.
He called it “borrowing.” Bishop has previously told the Citizen he acted in good faith in his romantic and business affairs with MacArthur. He intended to plead not guilty to fraud.

For the rest of the story see Edmonton Journal.

Even First Degree Murder Cases Stayed

Ottawa Judge Stays 1st-degree Murder Charge Over Trial Delay

The mother of Fouad Nayel says the justice system has failed her family after an Ottawa judge stayed a first-degree murder charge against the man accused of killing her son because the case took too long to get to trial.

“I felt so numb,” said Nayel. “I didn’t understand at first what she was saying, because I didn’t expect this. I’ve been waiting so long [for] justice to get served and I end up shocked, shocked with the result, because I feel the system failed us big time.”

Nayel, meanwhile, said she feels betrayed by the court. “[It] feels so unfair for someone to walk away on the street after what he’s done to us,” she said.

For the rest of the story, see CBC News.

 

The Jordan decision

The decision of the Supreme Court of Canada in R. v. Jordan was split 5 to 4. Four of the judges hearing the Jordan case disagreed with what the other five judges decided was a “reasonable” right for an accused relating to the time to get to trial.

As most fraud victims will note, for every right adjudicated in the favour of an accused, there is a corresponding infringement on the right of a victim to have his or her complaint tested on the merits. To better understand this infringement, we review what the minority (the four judges who disagreed with the other five), had to say about what is “reasonable”. The headnote summarized their position in part as:

The majority’s new framework is not an appropriate approach to interpreting and applying the s. 11 (b) right, for several reasons. First, the new approach reduces reasonableness to numerical ceilings. Reasonableness cannot be judicially defined with precision or captured by a number.

The majority’s approach also exceeds the proper role of the Court. Creating fixed or presumptive ceilings is a task better left to legislatures. The ceilings place new limits on the exercise of the s. 11(b) right to a trial within a reasonable time for reasons of administrative efficiency that have nothing to do with whether the delay in a given case was or was not excessive. This is inconsistent with the judicial role.

The majority’s approach also risks negative consequences for the administration of justice. The presumptive ceilings are unlikely to improve the pace at which the vast majority of cases move through the system. As well, if this new framework were applied immediately, the majority’s transitional provisions will not avoid the risk of thousands of judicial stays.

Moreover, the increased simplicity which is said to flow from the majority’s new framework is likely illusory. Even if creating ceilings were an appropriate task for the courts and even if there were an appropriate evidentiary basis for them, there is little reason to think these ceilings would avoid the complexities inherent in deciding whether a particular delay is unreasonable.

The majority’s framework simply moves the complexities of the analysis to a new location: deciding whether to rebut the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.

Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays. In short, the new framework is wrong in principle and unwise in practice. [Emphasis added].

An “unwise” decision

It is a rare case when four Supreme Court Justices characterize the decision of their fellow Judges as “unwise”. Yet that is what occurred four times in the minority’s reasons for decision (emphasis added):

[151] Second, unreasonableness is not conducive to being captured by a set of rules: a reasonable time for the disposition of one case may be entirely unreasonable for another. Reasonableness is an inherently contextual concept, the application of which depends on the particular circumstances of each case. This makes it difficult and in fact unwise to try to establish the reasonable time requirements of a case by a numerical guideline.

[254] It will by now be obvious that I fundamentally disagree with the approach proposed by my colleagues. It is, in my respectful view, both unwarranted and unwise.

[276] What evidence there is in the record suggests that it would be unwise to establish these sorts of ceilings.

[302] I am not convinced that this Court should impose the scheme proposed by my colleagues. It diminishes Charter rights. It casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change — and this in the context of a case in which all of us agree that the result is clear under the existing jurisprudence. It has not been the subject of adversarial scrutiny or debate. The record does not support the particular ceilings selected. Nor, so far as I can tell, does the Court-conducted examination of reported cases. And it risks repetition of the Askov aftermath in which thousands of prosecutions were judicially stayed. In short, the proposed scheme is, in my respectful view, wrong in principle and unwise in practice.

Most fraud victims would likely be of the view that it is “unwise” if their cases are not adjudicated on the merits. Most fraud victims would also likely be of the view that even if the delay to get to trial were deemed to be unreasonable the answer is not to stay the proceeding – but rather some other form of remedy.

The rationale of the majority

The following are some excerpts from the decision of the majority in Jordan. The issue is not in the laudable goals and legal principles that they espouse, as they would be agreed with by most fraud victims. Those goals and principles include the following:

Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”.

Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

The right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice. It finds expression in the familiar maxim: “Justice delayed is justice denied.” An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.

Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.

At the same time, we recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice.

Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice. Victims of crime and their families may be devastated by criminal acts and therefore have a special interest in timely trials. Delay aggravates victims’ suffering, preventing them from moving on with their lives. Timely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the “worry and frustration [they experience] until they have given their testimony”. Repeated delays interrupt their personal, employment or business activities, creating inconvenience that may present a disincentive to their participation.

Last but certainly not least, timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin, “delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice. Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p. 1221).

Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as “a fair and balanced criminal justice system simply cannot exist without the support of the community” (Askov, at p. 1221).In short, timely trials further the interests of justice. They ensure that the system functions in a fair and efficient manner; tolerating trials after long delays does not.

Swift, predictable justice, “the most powerful deterrent of crime,” is seriously undermined and in some cases rendered illusory by delayed trials.

While these may be laudable goals, there seems to be a detachment from reality. “Swift justice” may be a deterrent to crime but it is not the “most powerful” deterrent. Most fraud victims would suggest that justice on the merits followed by punishment is the most powerful deterrent. In R. v. Jordan, Mr. Jordan had been convicted by the time his case had reached the Supreme Court of Canada, but in light of the majority’s position that the convict’s Charter rights supersede the victim’s rights, the Supreme Court of Canada set aside the conviction and stayed the charge. The Court let a guilty man walk. As there was no punishment, there is no deterrent.

While the Supreme Court of Canada may say that “predictable justice” is a “powerful deterrent of crime”, the reality is that the outcome of court cases is anything but “predictable”. While victims would prefer timely trials, they do not want to see a case stayed based on arbitrary ceilings placed on the time to get a case to trial – see Crime Without Punishment: Canada’s Investment Fraud Problem: http://www.theglobeandmail.com/report-on-business/crime-and-no-punishment-canadas-investment-fraud-problem/article13938792/?page=all .

Another sad consideration for the public is the waste of police and Crown resources on investigating serious crimes that the Courts just later stay. Where is the incentive to fight crime when the Courts wipe away the efforts of Crowns, police and victims who come before them?

Fraud victims should not rely on the criminal justice system for recovery

I have often cautioned fraud victims against relying on Canada’s criminal justice system to obtain a recovery. See our blog post What Fraud Victims Should Know About Problems with Criminal Restitution Orders. In an article entitled “Man Defrauds Own Family, Friends”, the story is told of how fraudster Michael Di Giulio took millions from his own family. In response to frustration with the criminal process, once of the victims was quoted as saying: “Quite frankly, I really don’t care what they do to him and how they deal with him. I need my money back. I want my money back.” (Canoe News).

Ultimately this is where we find most fraud victims end up. While many fraud victims initially want the fraudster to be punished, they come to realize that the criminal justice system is a high stakes game – where Judges (who are funded by taxpayers), complain about the government-run Courts and Crown prosecutors (who are also funded by the public) as living in a culture of complacency, while fraud victims see the government and the Courts living in a culture focused on the Charter rights of the accused as if they are some holy grail at the expense of their own rights to justice.

To state otherwise, while the Courts cloak themselves in the comfort that the Charter is the ultimate law in the country, this does not resonate well with victims who have no “right” they can point to in the Charter to ensure their criminal complaint is fairly dealt with on the merits.

It is because of decisions like Jordan that fraud victims ultimately give up on pursuing justice through the criminal system. It is because the criminal process is risky at best that fraud victims should protect their own interests and pursue justice and restitution by first suing the fraudster and their accomplices in the civil court system where Charter rights do not exist. We recommend that after the civil process is protected that fraud victims consider coordinating their complaint with whatever criminal or regulatory actions the state may deem appropriate to take.

Read more by Norman  J. Groot at Investigation Counsel PC.