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Criminal Law - Constitutional issues - Canadian Charter of Rights and Freedoms - Legal rights - Life, liberty and security of person - Remedies for denial or rights

Thursday, December 08, 2016 @ 7:00 PM  


Appeal by the Crown from the stay of charges of fraud, conspiracy to commit fraud, falsifying books and documents and circulating a false prospectus against four accused. Hunt, Parsons, Hillyard and King were jointly charged with a total of 19 offences arising from the bankruptcy and insolvency of Hickman Equipment, where the four accused each had senior management positions. The Crown alleged that the accused intended by fraudulent means to conceal business losses. Specifically, they sold or transferred equipment that had been used to secure loans without informing or paying the creditor, and they falsified documents and the books. The bankruptcy resulted in losses to creditors of approximately $93 million. Charges were initially laid on November 5, 2012, following an investigation that commenced in September 2002. The accused applied for a stay in October 2014, alleging an abuse of process due to pre-charge delay. The judge was satisfied that, as early as 2002, the possibility of fraudulent conduct was identified by investigators. He noted the involvement of the Director of Public Prosecutions in April 2007, finding that the Crown had to be taken as having the justification in hand to warrant swearing an information at that time. The judge accepted that the charges in 2012 came as a shock to the accused. Also, he considered evidence from the company’s Chief Financial Officer, who had raised questions about fictitious book entries and rental contracts in 2002, and had expressed concerns about his own fading memory on the detail of the circumstances. The judge accepted unchallenged evidence from the accused that the cloud hanging over them, and the media scrutiny they lived under, negatively affected their employment opportunities and their lives in general. As the Crown offered no explanation for the delays, the judge concluded that the passage of time was unwarranted and inexcusable and would offend society’s fundamental sense of justice and undermine the judicial process.

HELD: Appeal dismissed. The judge did not err in concluding that the accused’s right to security of the person was breached by the lengthy pre-charge delay, and that a stay was the appropriate remedy. The judge provided sufficient reasons for concluding that the accused’s right to security of the person was infringed by the lengthy pre-charge delay which caused continuing stress, anxiety and stigma. The judge was entitled to find that the case, although involving a large volume of documents, was not particularly complex. No finding of bad faith was necessary to ground a finding of abuse of process. The judge provided an ample basis for concluding that the pre-charge delay amounted to an abuse of process. He applied the proper test for granting a stay, specifically, whether the pre-charge delay was offensive to societal notions of fair play and decency and whether a trial would be harmful to the integrity of the justice system, and whether there was an alternate remedy to granting a stay. The judge undertook the necessary balancing of interests in determining that a stay was the only appropriate remedy.