Vauclair, Sansfaçon, Kalichman

Appeals from convictions. Dismissed. Applications for leave to appeal the sentences of the appellants Jolicoeur and Péloquin. Granted. Appeals from sentence. Jolicoeur’s appeal from the sentence is allowed in part and Péloquin’s is dismissed.

The appellants participated in a large-scale fraudulent scheme that lasted several years. This fraud resulted in losses of approximately 14.8 million dollars for numerous investors who were swindled. After a jury trial, the appellants were convicted on various counts. Terms of imprisonment of varying lengths for each accused were also imposed.

The net delay between the laying of the charges and the end of the evidence is 58 months. The trial judge found that the institutional delays were 32 months. He concluded that the complexity of the case justified exceeding the ceiling pursuant to a transitional exceptional circumstance. This conclusion contains no error. Moreover, the delays do not justify a stay of proceedings under R. v. Morin (S.C. Can., 1992-03-26), SOQUIJ AZ-92111050, J.E. 92-517, [1992] 1 S.C.R. 771. Clearly, the 32 months attributable to institutional delays greatly exceed the guidelines set out in that judgment, but the appellants were out on bail. The materialization of the harm is presumed to be due to the long delay; however, the analysis does not end there. The seriousness of the charges and the harm suffered are variables in the application of the transitional exceptional circumstance assessment; these two elements play a decisive role in determining the reasonableness of the delay. In this case, the delay for holding the trial arose from a series of various difficulties combined with known problems in the judicial district in question. This justified the judge's conclusion.

Furthermore, a judge can prevent the repetition of evidence when the delays are on the verge of becoming unreasonable. He or she can then cautiously interfere in the discretionary powers of the prosecution. However, these powers cannot be exercised by sacrificing fairness and the rules of evidence. The issue is even more delicate when the evidence concerns statements attributed to the accused, as in this case, and do not concern peripheral facts. Serious, or even exceptional, circumstances are then required for a judge to adopt measures that affect the parties’ prerogatives, their strategies, and the conduct of the trial. In this case, the judge erred in allowing the prosecution to adduce into evidence, through the affidavits of wronged investors, statements attributed to the accused. These elements are in principle important pieces of the incriminating evidence that are better adduced in person, which would allow the witnesses to be cross-examined after an unguided testimony in chief. That said, no substantial wrong or miscarriage of justice occurred within the meaning of 686(1)(b)(iii) of the Criminal Code.

Last, the appellant Jolicoeur, who was sentence to a total term of imprisonment of 3 years, failed to establish that the judge erred by not taking into account the long pre-charge delays. The judge, in exercising his discretionary power, considered that these delays, considering the nature of the offences, the scope of the investigation, and the complexity of the evidence, were justified.  Moreover, the judge also did not err in not taking into account the loss of her right to practice as a notary. Practicing the profession of notary requires a high degree of probity. Taking advantage of this status to commit a crime is an aggravating factor. The fraud is so serious that the Court does not believe that the appellant’s personal loss can be decisive. However, it is true that the judge committed an error in principle in not asking for additional submissions before imposing a sentence harsher than the one suggested by the prosecution on the count of laundering the proceeds of crime. A sentence of two years should therefore be substituted for the one imposed by the judge on this count.

Text of the decision: http://citoyens.soquij.qc.ca