R. c. Hunt, 2017 CSC 25, R. v Hunt, 2016 NLCA 61
La contestation selon l’article 7 d’un délai préinculpatoire important à l’égard d’accusations dûment déposées a été bien circonscrite à quelques rares cas inhabituels où l’on a démontré un préjudice au droit à un procès équitable ou un abus de procédure.
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Determining that investigatory or pre-charge delay constitutes abuse of process requires more than conclusive statements that the pre-charge delay was egregious and that the Respondents suffered an exacerbation of personal prejudice due to the passage of time. A determination of abuse of process cannot be made in a vacuum and must be found in the factual background of the particular case. Accordingly, to properly review the determination, resort must be had to the evidence tendered on the Respondents’ application.
[83] The Judge’s conclusion that abuse of process was established appears to have been based on his view that the investigatory delay was egregious and that the delay between 2007 and 2012 was “explained unsatisfactory [sic] as generally complex” (at paragraph 99), which together offended the community’s sense of fair dealings and society’s sense of justice, thus undermining “the integrity of the judicial process” (at paragraph 101). He supported this view by finding that the Crown had been in a position to lay charges in 2007 but had neither done so nor explained why it had not done so (at paragraphs 93-99). The Judge also found that the Respondents suffered personal prejudice which compromised their well-being and security (at paragraphs 55-57).
[84] I do not dispute that ten years is a long time to be investigating a complaint of criminal conduct. However, determining that investigatory or pre-charge delay constitutes abuse of process requires more than conclusive statements that the pre-charge delay was egregious and that the Respondents suffered an exacerbation of personal prejudice due to the passage of time. I would also note that egregiousness involved in residual category abuse of process relates to Crown conduct (Anderson, at paragraph 50). The Judge’s use of the word to describe the pre-charge delay in this case makes a certain point, but not the point required to be made. What is required to make out abuse of process is egregious Crown conduct in the handling of the investigation. It is the Crown conduct that is in issue, not the length of the delay.
[85] A determination of abuse of process cannot be made in a vacuum and must be found in the factual background of the particular case. Accordingly, to properly review the determination, resort must be had to the evidence tendered on the Respondents’ application.
There must be some Crown conduct which can be fairly described as offensive, even if not made in bad faith or for an ulterior purpose, in order to constitute oppression so as to support a determination of abuse of process. Such conduct must rest on some positive action on the part of the oppressor and be rooted in the facts and circumstances of the Crown’s conduct of the case.
[92] The investigation involved many transactions, many people, many locations and much time. In short, it was both complex and massive. To describe it as less would be disingenuous.
[93] The evidence discloses no suggestion of improper conduct, wrongdoing, bad faith, improper motivation, or vexatiousness in the Crown’s conduct of the investigation. The Respondents maintain, however, that oppression is the basis on which abuse of process is established, and they rely on Wilson J.’s words in Keyowski to support their argument.
[94] I agree with the Respondents that oppression does not have to involve Crown “malfeasance or misconduct”. However, I am of the view that there must be some Crown conduct which can be fairly described as offensive, even if not made in bad faith or for an ulterior purpose, in order to constitute oppression so as to support a determination of abuse of process.
[95] Such conduct must rest on some positive action on the part of the oppressor and be rooted in the facts and circumstances of the Crown’s conduct of the case. I am also of the view that the oppressive action must be apparent so as to permit an objective evaluation of it, and that it involve an element of injustice or unfairness, or at least result in injustice or unfairness to an accused.
[96] In this case the Judge stated that choices were made by the investigators that placed the Respondents in jeopardy “for the concurrent periods of their choice of those delayed timelines” (at paragraph 99). He identified places in the investigation where he felt efficiencies could be gained (at paragraphs 78 to 86), but did not identify any conduct that could be described as oppressive. As well, I am unable to identify any choices made by the investigators that could be regarded as unjust or unfair or cause injustice or unfairness to the Respondents. The investigation was conducted in a professional manner with appropriate forensic and legal consultation. The length of time it took speaks to its enormity. Accordingly, I do not accept that the Crown oppressed the Respondents by virtue of its lengthy investigation. I note that even if there were Crown conduct which could be regarded as oppressive, it would have to be of magnitude that would tarnish the integrity of the justice system (Nixon, at paragraph 59) or seriously compromise its integrity (Anderson, at paragraph 50). This issue was at play in R. v. Clarke, 2015 NSSC 224 (CanLII), 363 N.S.R. (2d) 337, where the court found that the choices made by the investigatory team did not amount to abuse of process in the nine-year investigation of fraud relating to unlawfully affecting the public market price of an incorporated company, despite findings of mistake in the conduct of the investigation and that the investigation was significantly under resourced. The court refused to stay the charges.
[97] In this regard I acknowledge that it could be argued that proceeding with a criminal prosecution after a 10-year investigation is per se oppressive. Like Justice Wilson in Keyowski, I cannot say that there would never be a case where the exercise of Crown discretion to lay a criminal charge after a lengthy investigation would constitute abuse of process. However, such a finding, again, would have to be rooted in the facts and circumstances of the particular case, and would also involve consideration of what is involved in the integrity of the justice system and what it takes to undermine it.
[98] In addition to not seeing oppression in this case, I am also of the view that the lengthy pre-charge delay in this case does not undermine the integrity of the justice system.
[99] The notion that delay, in the absence of jeopardy to fair trial rights, Crown misconduct, or oppressive Crown conduct, can result in the staying of serious criminal charges, is very disturbing to me. It effectively means that charges laid after a lengthy investigation cannot be prosecuted on their merits, regardless of their complexity and volume. Complexity and volume involve time. It follows that the more complicated and voluminous the offence, the more likely that charges arising from it will be stayed. Such a result rewards sophisticated criminal conduct, and effectively imposes a judicially determined limitation period on charges which take a long time to investigate simply because it is too difficult, time consuming, and/or expensive to do so.
[100] Complicated commercial crime is most often committed by persons in positions of power and influence and blessed with financial resources. Staying criminal charges in such cases translates into a pass for perpetrators of these crimes and could even be understood to widen the gap between the haves and have nots in our society and affect the perception that everyone is entitled to be treated equally before and under the law. Upholding the Judge’s decision in this case amounts to an advance declaration that the most complicated, sophisticated crimes will not be prosecuted. To my mind, this result tarnishes and seriously compromises the integrity of the justice system, and accordingly would not establish abuse of process.
The administration of justice requires that criminal charges be laid in compliance with certain investigatory standards.
[109] The evidentiary record shows that much investigatory work took place between 2007 until the charges were laid in 2012. Work on both forensic reports was ongoing during this period – the Phase I report was released to the RCMP on October 29, 2009 and the Phase II report was not released until April 20, 2011. While the majority of witness interviews took place between 2003 and 2007, seventeen witnesses were interviewed during 2008 and 2009. Police also met with Department of Justice officials during this period. In 2007 they sought legal advice on “the directing mind issue” and in 2011, upon their submission of the forensic reports to the Department of Justice, they sought advice respecting what charges ought to be laid.
[110] The Judge did not refer to any evidence on which he based his conclusion that the Crown could have laid charges against the Respondents in 2007. That is because there is none. Sgt. Doyle testified that in 2006 police were aware that the Respondents were implicated in many of the transactions, but at no time did he provide evidence from which the Judge could infer that there was basis to proceed with charges against them at an earlier point in time. The Judge’s statements referred to in paragraph 42 above, show that he effectively placed the burden on the Crown to justify why charges had not been laid earlier. I know of no authority requiring the Crown to discharge such a burden. Moreover, the Crown witnesses were not asked if and when charges could have been laid earlier. On the other hand, there was evidence that in 2006 it had not been determined who would be charged, and that it had not been determined what charges would be laid in July, 2011 when police provided the fruits of the investigation to Department of Justice officials.
[111] Further comment respecting the Judge’s conclusion that charges could have been laid in 2007 or earlier is required. The laying of criminal charges involves far more than identifying possible persons of interest or suspects. The administration of justice requires that criminal charges be laid in compliance with certain investigatory standards. This is for everyone’s protection, as Dubin J.A. observed in Young:
…to compel the police or Crown counsel to institute proceedings before they have reason to believe that they will be able to establish the accused’s guilt beyond a reasonable doubt would … have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.
[112] The laying of criminal charges on notions of wrongdoing or incomplete evidence and before consideration has been given to the likelihood of conviction cannot enjoy the support of our criminal justice system. The Judge’s conclusion demonstrates a failure to appreciate the necessity for police to respect and adhere to changing standards and protocols
[113] My colleagues say that the investigatory delay has robbed the Respondents of the early chance to clear their names. I agree that a more timely trial would have given the Respondents an earlier opportunity for judicial determination of their charges. However, I do not agree that such a determination would necessarily restore their repute, make them employable, or clear their names (Blencoe, at paragraph 66). Moreover, I know of no authority that permits an individual to have him or herself charged on request for any reason, including for the early opportunity to be adjudged on charges laid.
[114] I also make the following observation, in response to the Judge’s view that the Crown should have allocated more resources to this investigation. The record shows that significant resources were allocated to this investigation. While additional resources might have resulted in a small reduction in the time it took to investigate this complaint, as Sgt. Doyle acknowledged, there is nothing to suggest that the resources allocated were inordinately low. Commercial fraud allegations of this nature and scale are rare in this jurisdiction, and the province cannot be expected to maintain a standing army of expert investigators at the ready to attend only to a single investigation of this sort. Despite the challenges, the provincial justice system managed to marshal a large team dedicated to this investigation. Its slow pace demonstrates its massive scale.
[115] In the result, I would find no deprivation of the Respondents’ section 7 rights to the security of their persons, and no abuse of process. Accordingly, I would not uphold the Judge’s decision to stay the charges against the Respondents. I would allow the Crown’s appeal and remit the matter to the Supreme Court Trial Division for trial.
