COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Villanti, 2020 ONCA 436

DATE: 20200710

DOCKET: M51338 & M51432 (C65741)

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

 Appellant (Responding Party)

and

Vincent Villanti, David Prentice, Shane Smith,

Ravendra Chaudhary and Andrew Lloyd

Respondents (Moving Parties)

Paul Riley, for the moving parties Vincent Villanti and Shane Smith (M51338)

Thomas Mathews, for the moving party David Prentice (M51338)

Ravendra Chaudhary, acting in person (M51338)

Steven C. White, for the moving party Andrew Lloyd (M51432)

Gregory Tweney, for the responding party

Heard: In-writing

Watt J.A.:

[1]          On December 22, 2016, as proceedings at the preliminary inquiry foundered, the Deputy Attorney General of Ontario preferred an indictment against six individuals. The indictment contained two counts: fraud and conspiracy to commit fraud.

[2]          About 19 months later, a judge of the Superior Court of Justice stayed proceedings against five of those individuals based on a breach of their right to be tried in a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.[1]

[3]          The Crown appealed the order staying proceedings on the indictment. The notice of appeal was filed in time, but the Crown failed to perfect the appeal within the time period required by Rule 18 of the Criminal Appeal Rules, SI/93-169.

[4]          The individuals who are respondents on the appeal by the Crown (collectively, “the applicants”) seek an order dismissing the Crown’s appeal for want of prosecution and awarding them costs as a consequence of the Crown’s conduct.[2]

[5]          In a separate motion, the applicant Lloyd seeks an order under s. 684 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, appointing counsel if we reject the application to dismiss or defer it to the panel hearing the appeal.

[6]          As these reasons explain, I would dismiss the application seeking dismissal based on the Crown’s failure to prosecute and the application for costs. I would allow the applicant Lloyd’s s. 684 application on the terms contained in the draft order filed with the court.

The Background Facts

[7]          The principal application focuses on the conduct of the Crown as the appellant in this court, in particular the failure of appellate counsel (not Mr. Tweney) to perfect the appeal in accordance with the Rules.

[8]          In view of the nature of the application, the remedy sought and the conclusion I have reached, a brief overview of the allegations contained in the indictment and the procedural history of the prosecution will furnish the context essential to this application.

The Allegations

[9]          In essence, the allegations are that the applicants conducted and developed an investment program through two related firms that raised over $13 million from investors. The promise was that the investments would be used to provide small businesses with start-up capital. Investors were told that they would be able to claim any losses incurred by these businesses against their personal income taxes.

[10]       The prosecution alleged that few, if any, of the promised investments were made. Instead, the investments were used to pay commissions, salaries and expenses of the applicants and their companies. Investors were told of inflated losses. But when the investors claimed those losses on their personal tax returns, the Canada Revenue Agency (CRA) rejected their claims. In the result, the investors were subject to ongoing assessments.

The First Section 11(b) Application

[11]       Less than one year after the preferment of the indictment and shortly before the scheduled trial date of September 25, 2017, the applicants sought a stay of proceedings under s. 11(b) of the Charter.

[12]       The motion judge dismissed the application: 2017 ONSC 7130. Among other things, the judge found significant defence delay in the Ontario Court of Justice and some further delay in the Superior Court of Justice. Although the delay exceeded the presumptive ceiling of 30 months, the judge was satisfied that it was justified by the particularly complex nature of the case, the efforts of the Crown to mitigate delay and the transitional exceptional circumstances exception: see R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

The Second Trial Date

[13]       Immediately after dismissal of their s. 11(b) application, three of the applicants sought and obtained an adjournment of the trial date. Each wanted to retain counsel. A new trial date of February 26, 2018 was set.

[14]       About one month before the scheduled trial date, the applicant Prentice gave notice that he would be bringing a third party records application to obtain records from the CRA. The applicant Smith claimed he had several witnesses to call at trial. As a result, the estimate of 12 weeks for completion of the trial, the applicants contended, would require expansion.

[15]       The applicants Smith and Prentice advised the supervising judge that they would be bringing a fresh s. 11(b) application at the outset of trial.

The Adjournment and Third Trial Date

[16]       On January 25, 2018, the supervising judge informed the parties that no judge was available to try the case on the second scheduled trial date (February 26, 2018).

[17]       On February 21, 2018, however, the supervising judge told the parties that a judge was in fact available.

[18]       Five days later, on February 26, the supervising judge announced that, because two judges had become ill, no judge was available to preside over the 12-week trial. The earliest date on which a judge would be available to do so was January 11, 2019, 11 months later.

[19]       The supervising judge fixed January 11, 2019 as the (third) trial date.

The Second Section 11(b) Application

[20]       In April 2018 the applicants filed the materials on which they relied to seek a stay of proceedings under s. 11(b). The application was heard on June 22, 2018.

[21]       On July 12, 2018, the motion judge entered a stay of proceedings: 2018 ONSC 4259. She was satisfied the net delay well exceeded the presumptive ceiling put in place by Jordan.

The Appellate Proceedings

[22]       Proceedings in this court began on August 9, 2018, when the Crown filed its notice of appeal against the stay of proceedings entered by the motion judge. Each of the applicants had been served personally with the notice of appeal on August 8, 2018.

The Transcripts

[23]       The transcripts required for the hearing of the appeal were available by the time the notice of appeal was filed on August 9, 2018.

[24]       In September and October 2018, the applicants were personally served with the transcripts necessary for hearing the appeal. The required number of copies with proof of service were filed with the court on October 18, 2018.

The Appeal Books

[25]       On August 13, 2018 the Crown requisitioned the original documents and exhibits from the Superior Court of Justice and asked that they be sent to the Registrar of this court.

[26]       By mid-November 2018, following some additional requests to the Superior Court of Justice, the Crown had obtained all documents required to prepare the appeal books. On November 30, 2018 the Crown filed the appeal books with this court with proof of personal service on all the applicants.

The Appointments of Lawyers

[27]       A Notice of Appointment of Lawyer (NAL) was filed on behalf of the applicant Prentice on January 2, 2019. The Crown received an NAL for the applicants Smith and Villanti on January 22, 2019, but it was not filed with the court until a year later. On January 28, 2020 an NAL for the applicant Lloyd was filed.

Perfection of the Appeal

[28]       What remained to perfect the appeal was service and filing of the appellant’s factum. Under the Criminal Appeal Rules, this was to be accomplished by January 18, 2019. It was not.

[29]       On January 22, 2019, counsel for the applicant Prentice sent an email to Crown counsel inquiring about “the status of the Crown’s appeal”. Crown counsel responded the next day. He anticipated delivery of the appellant’s factum “within two weeks”.

[30]       After personal service on four applicants and on Mr. Prentice’s counsel, the Crown’s factum was filed on October 31, 2019. It was 287 days late.

[31]       When counsel for the applicant Prentice received the factum, he emailed Crown counsel:

I am not accepting service of the Crown Factum sent to my office this morning. The delay is inexcusable, and there was no consent to, or acceptable reason for such a delay, especially on an 11(b) appeal. This matter was closed a long time ago.

Scheduling the Appeal for Hearing

[32]       About five weeks after the Crown had perfected its appeal, the Criminal Appeal Coordinator emailed Crown counsel and counsel for the applicant Prentice. The coordinator offered several hearing dates during the months of January through April, 2020. She explained that these were dates for solicitor appeals. Since most of the applicants were self-represented, the coordinator offered to obtain hearing dates for in-person appeals so that those who were unrepresented would at least have the assistance of duty counsel.

[33]       Crown counsel confirmed his availability on all suggested dates except for one in late March.

[34]       The applicants responded and indicated that they intended to bring a motion to dismiss the appeal for want of prosecution. This motion, they said, should be heard in advance of the appeal. They offered some dates for the hearing of their motion and one or two dates in May 2020 for the appeal itself, if their motion failed. They rejected Crown counsel’s suggestion that the motion and appeal should be listed for hearing on the same day before the same panel.

The Applications

[35]       The applicants seek an order dismissing the appeal based on the Crown’s failure to perfect it in accordance with the Rules. They also ask us to award them costs regardless of their success on their main application. In a separate motion, the applicant Lloyd seeks an order appointing counsel to act on his behalf in the event that the appeal is listed for hearing.

[36]       The applicants have filed material in support of the orders they seek. In large measure, these materials describe the consequences that the original prosecution and the outstanding appeal have had upon their lives and livelihood, including those of their families. They catalogue their loss of reputation and professional accreditations and the difficulties they have faced in attempting to obtain remunerative employment commensurate with their qualifications, interests and experience.

[37]       In some of their materials, the applicants allege malice on the part of Crown counsel who initiated and has carriage of the appeal. They characterize his conduct as scandalous, irresponsible, and demonstrative of a callous disregard for the presumption of innocence.

[38]       The applicants’ materials do not contain documentation of any requests to the Registrar or the Criminal Appeal Coordinator to have the appeal listed in status court or purge court to address the delay and set a firm deadline for perfection. Counsel for the applicant Prentice made one inquiry of Crown counsel on January 22, 2019, four days after the perfection deadline. Advised then that Crown counsel anticipated perfection within two weeks, the next documented contact was the date on which counsel was served with the Crown’s factum, over nine months later.

[39]       The Crown’s application record includes an affidavit and various attachments from the legal assistant to Crown counsel responsible for the appeal. It recounts the initiation of the appeal; the completion of the appeal books and factum; the dates upon which counsel for the various applicants filed their NALs; the efforts of the Criminal Appeal Coordinator and Senior Legal Officer to list the appeal for hearing; and the applicants’ insistence in proceeding with this application.

[40]       The Crown’s application record contains no explanation for the delay in perfection.

The Arguments on the Application to Dismiss  

[41]       The applicants say this appeal should be dismissed for failure to perfect in accordance with the Rules. The delay of more than nine months is lengthy. This is an appeal from a stay of proceedings under s. 11(b) for delay. Crown counsel with carriage of the appeal did not seek consent or other indulgences from the applicants or their counsel, nor did he seek an extension of time for perfection. The delay is unexplained.

[42]       In this case, the applicants contend, the unexplained lengthy delay in perfection, combined with a delay found to be constitutionally offensive in bringing them to trial, reflects a marked and substantial departure from the institutional obligation of the Crown such that it betrays an animus towards the applicants and amounts to an abuse of process. The remedy required is not only dismissal of the appeal, but also an award of costs to each of the applicants.

[43]       The respondent Crown accepts its institutional responsibility to ensure timely perfection of appeals it commences. It acknowledges its enhanced onus to comply with the Rules and its abject failure to do so in this case. It concedes that no explanation has been provided for the delay, and further that none offered now could possibly justify its default.

[44]       But, the Crown continues, neither the length of the delay, the absence of an explanation, nor the nature of the appeal itself – even considered together – sustain the applicants’ allegations of malice, nefarious motives, unacceptable negligence or sheer incompetence.

[45]       The respondent points out that the applicants advance their claim based on the residual category of the abuse of process doctrine. To succeed they must show that permitting the appeal to be heard on its merits would undermine the integrity of the judicial process.

[46]       This standard, the respondent contends, has not been met.

[47]       First, the applicants themselves have been dilatory in responding to the appeal. Four of them were not represented by counsel until three months after the appeal had been perfected. None sought, at any time during the nine-month period before perfection, to have the case listed in status court or purge court. What is more, they declined the court’s offer – made first by the Criminal Appeal Coordinator, then by the Senior Legal Officer – for an early hearing date. They also rejected a Crown suggestion that their motion and the appeal be listed on the same day before the same panel, a procedure which has been followed in previous cases.

[48]       When all the circumstances are considered, the respondent says, they cannot sustain a finding of abuse of process nor any other basis upon which this appeal should be dismissed without a hearing. There is no evidence of malice, animus or nefarious motive. The respondents did not utilize procedures available under the Rules or Practice Directions to have the case listed in either status court or purge court. The respondents caused further delay by rejecting appeal hearing dates offered in January through April 2020, and dates that combined their application with a hearing on the merits.

[49]       In addition, the respondent emphasizes the magnitude of the alleged offences. An unlawful agreement to defraud the public. Executed over an extended time. And resulting in proceeds of $13 million for the applicants’ own purposes, rather than those promised to investors. The legal issues involved are important. Society has a significant interest in the trial of this case which can only be vindicated by permitting the appeal to proceed. The stress and uncertainty of which the applicants complain pre-existed the delay in perfection. It has been exacerbated in part by the applicants’ own failure to pursue available remedies to achieve an earlier determination of their motion or of the appeal itself.

[50]       The respondent also rejects the applicants’ claims for costs. Since the principal application (to dismiss the appeal) should fail, the same result should follow on costs. Indeed, even if the main application were to succeed, a costs award does not automatically follow.

[51]       Costs awards against the Crown, the respondent adds, are rare and not governed by the same principles applicable to civil cases. While the delay in perfection was lengthy and unexplained, the respondent says it does not amount to a marked and substantial departure from the conduct expected of the Crown so as to warrant an award of costs. This is especially so in light of the applicants’ own failures and the basis on which their claim for costs is grounded.

The Governing Principles

[52]       The applicants rely on three sources of authority:

i.             the Rules and Practice Directions about perfecting appeals and authorities considering those rules;

ii.            the doctrine of abuse of process; and

iii.           the authority to award costs against the Crown in criminal cases.

The Criminal Appeal Rules and Practice Directions

[53]       Rule 18 of the Criminal Appeal Rules governs perfection of appeals.

[54]       One of the steps required to perfect an appeal is service and filing with proof of service of the appellant’s factum. In this case, Rules 18(1) and (3) required that service and filing of the appellant’s factum, together with proof of service, be done within 90 days of delivery of the transcripts to the court, “or such longer period as is permitted by a judge or the Registrar”.

[55]       Under Rule 20(1), the Registrar may serve notice on an appellant who has failed to perfect an appeal within the time limits required by Rule 18. The notice advises that unless the appeal is perfected within 10 days, it may be placed before a panel of the Court of Appeal to be dismissed as abandoned.

[56]       Under Rule 20(2) a respondent may – on notice to the appellant – request that the Registrar place the appeal before the court to be dealt with in accordance with Rule 20(1). A respondent may also move before a judge for directions.

[57]       A panel considering an appeal referred to it under Rule 20(1) retains discretion to dismiss the appeal as abandoned or to permit it to remain on the list subject to certain conditions including, for example, deadlines for filing materials: r. 20(3).

[58]       Rule 20 is not the only means available to a respondent to seek dismissal of an appeal that has not been perfected in accordance with the Rules.

[59]       Under section 9.11 of the “Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario” (March 1, 2017), counsel for a respondent may request that an appeal be spoken to in status court or purge court. The request may be made by emailing the Criminal Appeal Coordinator on notice to the opposing party and providing mutually convenient appearance dates. Status court is held once every month. Purge court is scheduled bi-monthly.

[60]       A single judge presides in status court. Depending on the circumstances, the presiding judge will set a time limit for perfection, failing which the appeal may be referred to purge court. There, a panel of three judges may dismiss the appeal as abandoned.

[61]       Under Rule 19, a respondent, as a party to an appeal, on notice to the appellant, may make a motion to a judge for directions about the conduct of the appeal.

[62]       Few authorities have considered the standard to be applied, or the circumstances in which an appeal may be dismissed as abandoned for failure to perfect in accordance with the Rules. However, some factors considered by courts include:

i.             the length of the delay beyond the perfection deadline;

ii.            any explanation for the delay;

iii.           the steps taken, if any, by the respondent on appeal to ensure timely perfection;

iv.           the effect of delay on the respondent;

v.            the significance of the issues on appeal to the administration of justice; and

vi.           the conduct of the delinquent party.

The list is illustrative, not exhaustive: see R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, at paras. 56-60; R. v. Jourdain (2001), 150 O.A.C. 314, at paras. 10-11; and R. v. Mercer, 2005 NLCA 10, 194 C.C.C. (3d) 370, at paras. 63-67.

The Doctrine of Abuse of Process

[63]       The applicants also enlist the residual category of the abuse of process doctrine.

The essence of this application is the Crown’s failure to perfect the appeal in accordance with the Rules. The remedy sought – dismissal of the appeal for non-compliance – is available under the Rules. It is neither necessary nor desirable to consider the doctrine of abuse of process to determine the outcome of this application. In these circumstances, I propose to say nothing more about the principles that underpin the doctrine or their application to this case.

Costs Against the Crown

[64]       Although used sparingly “prior to the advent of the Charter, superior courts have always possessed the inherent jurisdiction to award costs against the Crown”: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 80.

[65]       Unlike in civil cases where costs are awarded to partially indemnify a litigant, to encourage settlement, to deter frivolous proceedings and to discourage unnecessary steps, different considerations apply in criminal proceedings. Unlike an ordinary litigant, the Crown does not win or lose cases. Rather, the Crown conducts prosecutions and makes decisions about those prosecutions in the public interest. Costs are not usually deployed to influence the conduct of litigation: R. v. Singh, 2016 ONCA 108, 129 O.R. (3d) 241, at paras. 51-52. See also R. v. Ciarniello (2006), 81 O.R. (3d) 561 (C.A.), at paras. 32-33, leave to appeal refused, [2006] S.C.C.A. No. 424; R. v. Robinson, 1999 ABCA 367, 142 C.C.C. (3d) 303, at para. 29.

[66]       The standard to obtain a costs award against the Crown is stringent. The party seeking the award must demonstrate a marked and unacceptable departure from the reasonable standards expected of the prosecution. Typical descriptions reflective of the departure required are “oppressive or improper”, “remarkable” or “reprehensible”: R. v. Fercan Developments Inc., 2016 ONCA 269, 130 O.R. (3d) 321, at paras. 72, 74 and 76; Singh, at para. 40. Mere negligence on the part of the Crown does not constitute a flagrant or marked departure from the norm: Singh, at paras. 33, 40.

[67]       In determining whether this standard is met, inaction on the part of the defence is a relevant factor: Singh, at para. 41; Sheng, at para. 60.

The Principles Applied

[68]       As I will explain, I would not dismiss the appeal for want of compliance with the Rules. Nor would I award costs against the Crown. I will consider each claim in turn.

Non-Compliance with the Rules

[69]       First, the authority invoked.

[70]       Whether considered individually or in combination, neither the Criminal Code, the Criminal Appeal Rules nor any Practice Direction of this court create a bright line rule that failure to perfect an appeal within the time limits prescribed by the Rules requires dismissal of the appeal. Rather, the ultimate remedy for non-compliance is for a panel of the court to decide.

[71]       Illustrative of the discretionary nature of the court’s authority and of the remedies available is Rule 20, which may be invoked on the Registrar’s own motion, or at the request of the respondent. Among the remedies available are dismissal of the appeal as abandoned or an order that the appeal remain on the list, subject to such conditions as the court considers fit to complete perfection.

[72]       The discretionary nature of our remedial authority requires us to consider all the circumstances to determine whether the interests of justice favour dismissal or some lesser measure as the remedy.

[73]       Second, the length of the delay.

[74]       Although the appeal was commenced within the prescribed time and the transcripts and appeal books served on each applicant and filed with the court punctually, the appellant’s factum, due on January 18, 2019, was not filed until October 31, 2019.

[75]       The delay in perfection was clearly excessive. As appellate records go, the record in this case was not lengthy. There was no trial. When the notice of appeal was filed, Crown counsel had available all the relevant transcripts, and access to the record before the motion judge. The appeal books were served and filed by the end of November 2018. The issues raised were the subject of recent jurisprudence from the Supreme Court of Canada and clearly defined.

[76]       Further, the appellant in this case is the Crown, a party with significant institutional resources and a corresponding obligation to bring those accused of crime to trial in a reasonable time. That institutional obligation, no one would seriously contest, extends to the pursuit of appellate proceedings – all the more so where the appeal is from an order staying proceedings for unreasonable delay. Counsel with carriage of the appeal is a senior member of the Crown Law Office with decades of experience in this court and must be taken to have been aware of the requirements for perfection.

[77]       Third, the explanation for the delay.

[78]       The record does not reveal any explanation for the delay. Counsel who initiated the appeal and maintained carriage of it until perfection has provided no explanation. Equally absent is any indication of whether reassignment of carriage of the appeal was considered as the months without perfection accumulated. It is a reasonable inference that no explanation was provided because none is reasonably available.

[79]       The applicants suggest, in some of their materials, that the delay resulted from an oblique or nefarious motive on the part of Crown counsel. No evidence in the record supports this assertion. Nor is there any evidence to support a conclusion that lack of timely perfection is a systemic problem in the Crown Law Office - Criminal.

[80]       Fourth, the steps taken by the respondent to ensure timely perfection.

[81]       As noted, any respondent to an appeal that has not been perfected in accordance with the Rules has several options available under the Criminal Appeal Rules and current Practice Direction. For example, under Rule 20(2) a request may be sent to the Registrar to have the appeal placed before a panel of the court to be dismissed as abandoned unless perfected within ten days of service of the notice.

[82]       None of the applicants made any such request.

[83]       Under Rule 19, a respondent may seek directions from the chambers judge. This judge may refer the appeal to a panel for dismissal or set a deadline for perfection.

[84]       None of the applicants invoked Rule 19.

[85]       Under section 9.11 of the court’s Practice Direction, a respondent may email the Criminal Appeal Coordinator and ask that an appeal be listed in status court or purge court. During the nine-month period between the perfection date and actual perfection, there were nine status courts and at least four purge courts.

[86]       None of the applicants sought this assistance.

[87]       In his affidavit filed in support of this application, the applicant Prentice deposed that his counsel:

occasionally checked with court staff during the summer and early fall of 2019 as to the status of the appeal and any filings or explanation from the Crown. Court staff reported no movement on the appeal, and were themselves confused as to why the appeal was still pending despite failure to perfect. Furthermore, they were puzzled as to why the matter was not brought before status court or dismissed for delay.

[88]       Setting to one side the hearsay nature of this information and the failure to identify “court staff” to whom the remarks are attributed, it beggars belief why counsel did not pursue the rudimentary steps necessary to have the appeal “brought before status court or dismissed for delay”.

[89]       Around five weeks after perfection, the Criminal Appeal Coordinator and Senior Legal Officer offered hearing dates for the appeal commencing in the first quarter of 2020. The majority of the applicants had not yet retained counsel. Those who had rejected the dates offered. They sought a date for their motion to dismiss well in advance of any date fixed for the hearing of the appeal. They rejected the suggestion that the motion and appeal could be listed on the same date before the same panel.

[90]       It is difficult to avoid the inference from the applicants’ conduct that they were content to let sleeping dogs lie in the hope that the Crown’s appeal would expire of old age.

[91]       The interests of justice are not well served if appeals to this court are not commenced, perfected, listed for hearing, heard and decided expeditiously. This ensures that the principles of finality and reviewability are respected and that if proceedings are returned to trial courts, the evidence remains available and not unduly separated from the events the witnesses describe.

[92]       This court takes seriously its obligation to manage its inventory so that appeals are heard and decided as expeditiously as circumstances permit. On an institutional level, in a court that decides around 1000 cases each year, we cannot be expected to have intimate familiarity with the status and circumstances of every outstanding appeal. Sometimes, despite our best efforts, a perfection deadline is missed. We rely on counsel on both sides of an appeal, who are much more familiar with the status and progress of their cases than are we, to advise us about failures such as occurred here. Inaction is not an option.

[93]       Our Rules and Practice Directions make clear the steps to perfect an appeal as well as timelines for completing each step. We cannot allow a culture of complacency to take root and flourish here else it will have an effect not unlike that which the Supreme Court of Canada described in Jordan.

[94]       As an institution, we provide several vehicles to ensure timely perfection, listing, hearing and decision in outstanding appeals. Status court. Purge court. Motions for directions. Case management. We expect counsel engaged in appellate practice to cooperate with one another and to invoke these available mechanisms to ensure that justice is delivered in an efficient, timely and fair way. This is not a big ask.

[95]       Fifth, the effect of delay in perfection on the applicants.

[96]       It is beyond controversy that untimely perfection of the Crown’s appeal prolonged the stress and uncertainty occasioned by the mere fact that an appeal was taken and the prospect of trial proceedings as a potential outcome. On the other hand, some stress and uncertainty would equally have resulted even with timely perfection.

[97]       The delay in perfection had no impact on the applicants’ liberty. They are not subject to any form of judicial interim release. Their ability to respond to the appeal has not been diminished or compromised by the delay in perfection. Nor has the delay had any effect on any sanctions which may have been imposed on them in any separate regulatory proceedings. On the issue of prejudice, eloquent by its absence is any attempt by the applicants to invoke our jurisdiction to dismiss the appeal until advised by the Criminal Appeal Coordinator and Senior Legal Officer of dates available for a hearing of the appeal on its merits.

[98]       Sixth, the significance of the issues on appeal to the administration of justice.

[99]       The allegations in this case are of a serious fraud of a significant magnitude. The issues raised, while narrow, are important.

[100]   Finally, balancing the competing interests.

[101]   This appeal was not perfected in a timely way. The failure is unexplained, perhaps unexplainable, especially where the order under appeal is a stay of proceedings for unreasonable delay. The failure is that of the Crown, a party with institutional obligations to ensure that all phases of a criminal prosecution, including appeals from decisions in courts of first instance, are brought to a timely conclusion. The record on which the appeal is based is not substantial. The issues raised are the subject of recent and authoritative precedent. The institutional nature of the Crown appellant left options for timely completion, such as reassignment of the appeal, available but not taken up. The overtime period was substantial, but not egregious.

[102]   On the other hand, the applicants’ inaction is telling. An intemperate email within days of the perfection date. Next heard from when perfection occurred. And then, despite his obligations as counsel of record, an immoderate purported refusal to accept service of the factum on behalf of his client. In the interim, no requests to have the appeal listed in status court. Or in purge court. Or to be case managed. Or for directions.

[103]   Within weeks of perfection, the parties were offered several dates for a hearing of the appeal on the merits in the first quarter of this year. By then, other applicants had retained counsel, although only one had filed an NAL. The applicants, through counsel, rejected dates offered for hearing the appeal on the merits. The appeal management judge directed that their motion to dismiss the appeal as abandoned be heard first, in advance of any hearing on the merits. They filed their motion record three months after perfection of the Crown’s appeal.  

[104]   Given the severity of the allegations against the applicants, the issues raised on appeal are important. They are deserving of adjudication.

[105]   On balance, I am not persuaded it is in the interests of justice to impose capital punishment for Crown counsel’s failure to perfect the appeal in accordance with the Rules. But that remedy remains available in appropriate cases. As at the trial level, inaction has its price: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 32-33.

[106]   Something must be said about certain materials filed on behalf of the applicants in support of their motion.

[107]   In the affidavit of the applicant Prentice, presumably drafted with the assistance of his counsel who acted as the commissioner and provided information to the affiant, Crown counsel was characterized in a number of ways:

·        “completely oblivious to, or could care less about, the proper timelines for perfecting an appeal”

·        “that seem to value their cottage time over court deadlines … and [the] presumption of innocence”

·        “demonstrated his arrogance and disreputable nature”

·        “demonstrative of [counsel’s] pettiness [and] unprofessional nature”

·        “behaviour unbecoming of a Crown Attorney, and potentially demonstrative of the malice that the Crown has in their conduct towards me”

·        “I suspect there is no acceptable explanation other than negligence, incompetence, and/or outright malice towards me”

[108]   In his affidavit, the applicant Smith describes the Crown’s conduct as “scandalous and irresponsible”, demonstrative of “a callous disregard for the presumption of innocence”.

[109]   These characterizations of the conduct of the Crown and of Crown counsel with carriage of the appeal appear to be founded on two events:

i.             the initiation of an appeal by the Crown from the stay entered by the motion judge; and

ii.            the failure of Crown counsel to perfect the appeal in accordance with the Rules, including the failure to seek the indulgence of counsel for the applicants or an order of the judge of this court to extend time for perfection.

[110]   Section 676(1)(c) of the Criminal Code grants the Crown a right of appeal against a trial court order that stays proceedings on an indictment. Similarly, s. 676(1)(b) authorizes a Crown appeal against an order of a superior court of criminal jurisdiction that in any manner refuses or fails to exercise jurisdiction on an indictment. Leave to appeal is not required.

[111]   Exercise of a statutory right of appeal, without more, cannot sustain a claim of nefarious or oblique motive on the part of counsel who initiates or has carriage of an appeal. Simply put, it cannot support Prentice’s claims of “arrogance”, “pettiness”, “malice” or an “unprofessional nature”.

[112]   The same may be said of the Crown’s failure to perfect the appeal within the time limit prescribed by the Rules. Crown counsel with carriage of the appeal must wear the lengthy and unexplained delay in perfection, together with his failure to communicate with counsel opposite or the court to seek an extension of time. But these failures, alone or in combination, do not rise to the level of the vituperative language of the applicant Prentice.

[113]   Impeachment of the integrity of counsel opposite – in particular, the attribution of essentially corrupt motives without any, let alone a sufficient evidentiary foundation – is irresponsible advocacy, unworthy of a member of the Ontario bar. As stated in the Rules of Professional Conduct, part of the lawyer’s duty of courtesy is to “avoid ill-considered or uninformed criticism of the competence, conduct, advice, or charges of other legal practitioners”: Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, 2000 (as amended), ch. 7, s. 7.2. The allegations made in this case are all the more inappropriate given counsel’s own lengthy period of inaction.

Costs Against the Crown

[114]   The applicants’ claim for costs depends upon their success in establishing that the failure of timely perfection constitutes an abuse of process. As I have explained, that claim fails. The ground on which this claim for costs rests has collapsed underfoot. Likewise, the application.

[115]   The unexplained delay in perfection of nine months reflects negligence on the part of counsel with carriage of the appeal. The delay is antithetical to the institutional obligation of the Crown to ensure timely conduct of its litigation. However, there is no evidence that the failure is systemic in origin, reflects malice, or is the product of any oblique or nefarious motive. The conduct here falls short of a marked and substantial departure from the reasonable standards expected of the prosecution.

[116]   Second, a relevant consideration in determining whether the default in this case amounts to a marked and substantial departure from the reasonable standards expected of the prosecution is the response of the defence. In a word, inaction. For all practical purposes, nothing, until three months after perfection when the court began offering dates for a hearing on the merits.

[117]   Third, the applicants’ request for costs ignores the fundamental distinction between cost awards in criminal and civil cases. In criminal cases, the purpose of a costs award is not primarily punitive or compensatory, but rather to ensure that an accused is not deprived of the opportunity to advance a defence because of the cost associated with Crown misconduct. Here, the delay in perfection added no costs beyond responding to the appeal, a cost already incurred with the filing of the appeal.

[118]   For these reasons, the application for a costs award against the Crown fails.

The Section 684 Application of Andrew Lloyd

[119]   Andrew Lloyd is a respondent on the appeal by the Crown. He did not participate in the motion to dismiss the appeal. In the event that the appeal proceeds to a hearing on the merits, he seeks an order under s. 684 of the Criminal Code appointing counsel to act on his behalf in responding to the grounds of appeal.

[120]   The Crown consents to an order on the terms contained in a draft order filed with the court.

DISPOSITION

[121]   I would dismiss the applicants’ motion in its entirety and direct that the appeal be heard at the earliest convenient date. I would also direct that the applicants’ serve and file their factums not later than July 31, 2020. If further directions are required, counsel should arrange a conference with the appeal management judge.

[122]   I would allow the applicant Lloyd’s application for the appointment of counsel under s. 684 of the Criminal Code and grant the order requested on the terms contained in the draft order filed with the court.

Released: “DD” July 10, 2020

“David Watt J.A.”

“I agree. Doherty J.A.”

“I agree. B.W. Miller J.A.”