R. v. Clarke (W.L.) et al., (2016) 379 Nfld. & P.E.I.R. 103 (NLTD(G))

• Judge: Fitzpatrick, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 30, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 379 Nfld. & P.E.I.R. 103 (NLTD(G))

R. v. Clarke (W.L.) (2016), 379 Nfld. & P.E.I.R. 103 (NLTD(G));

    1176 A.P.R. 103

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JA.034

Her Majesty the Queen v. William Leger Clarke and Terrence Martin Reardon

(201501G2691; 2016 NLTD(G) 13)

Indexed As: R. v. Clarke (W.L.) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Fitzpatrick, J.

January 25, 2016.

Summary:

The two accused were charged with one count of conspiracy to commit fraud (Criminal Code, ss. 380(1)(a), 465(1)(a)) and 38 counts of fraud (s. 380). The charges involved incidents that allegedly occurred between September 29, 2000 and May 19, 2004. The accused brought a Charter application for a stay of proceedings based on both pre-charge delay (ss. 7 and 24(1)) and post-charge delay (ss. 11 and 24(1)).

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application.

Civil Rights - Topic 3130

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Delay (Charter, s. 7) - William Clarke and Terrence Reardon (the accused) were charged with one count of conspiracy to commit fraud and 38 counts of fraud - The charges arose out of their involvement in a real estate development company ("Myles-Leger") which was formed in 1999 - William Clarke and his brother Randell Clarke owned the company - Terrence Reardon was employed by the company as accountant/controller - They were alleged to be the company's controlling minds - Myles-Leger would develop properties for public sale - William Parsons Law Office was retained - Transactions for the properties were handled by either William Parsons or his associate lawyer Glenn Bursey (now deceased) - Persons purchasing properties would forward funds to either Parsons or Bursey to pay out existing mortgages - The funds were supposed to be held in trust until the lawyer completed the transaction - Many of the mortgages were never paid out - The Crown alleged that the funds were often redirected by Parsons or Bursey back into Myles-Leger at William Clarke's or Terrence Reardon's request - The incidents allegedly occurred between September 29, 2000 and May 19, 2004 - The investigation began in June 2004 - Charges were laid against the accused and Randell Clarke in December 2012, with the trial scheduled to begin in February 2016 - The charges against Randell were withdrawn in 2014 - Total pre-charge delay was 102 months - The investigation continued post-charge - Post-charge delay was 39 months - The accused applied for a stay of proceedings under s. 24(1) of the Charter based on both pre-charge (s. 7) and post-charge delay (s. 11) - The Newfoundland and Labrador Supreme Court, Trial Division (General), found that the length of delay placed the case well within a timeframe warranting examination - The court found that the unavailability of any evidence from Glenn Bursey would not impact the ability to make answer and defence in a meaningful way - This, combined with the other evidence, meant that "fair trial prejudice" to the accused was not established - However, an abuse of process (residual category) was made out on the basis of, inter alia, pre-charge delay - "The fact that this police investigation took eight and one half years in the circumstances ... is ... totally unwarranted. The overall police investigation was handled with massive inattention that amounts ... to negligence. ... Society's sense of fair play and reliance on the concept of fundamental justice would be offended in these circumstances." - Further, s. 11 of the Charter was breached based upon the 39 month post-charge delay, which well exceeded the R. v. Morin (1992 S.C.C.) Guidelines - "While it is perhaps not unusual that further investigation would occur post-charge, ... the type of investigation here should have occurred well prior to the charges being laid. ... [T]he post-charge investigation only resulted in further delays here. ... The evidence obtained post-charge was not insignificant or peripheral disclosure. ... [T]his evidence seemed to be obtainable prior to charges being laid." - Finally, this was one of the clearest of cases warranting a stay of proceedings - The accused suffered prejudice that gravely affected their work lives, health, financial well-being and overall social and family lives - The affront to the justice system and the prejudice to the accused occasioned by the delay was an abuse of process that would be further aggravated by conducting a trial - See paragraphs 160 to 183.

Civil Rights - Topic 3130

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Delay (Charter, s. 7) - The accused brought an application for a stay of proceedings under s. 24(1) of the Charter based on both pre-charge (s. 7) and post-charge delay (s. 11) - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated "The Crown has argued that the Court would be embarking upon a 'prohibited analysis' if attempting to critically examine a police investigation in the absence of an ulterior motive. It has argued that this is a mistake in the analysis in R. v. Hunt [2015 NLTD(G)]. The Crown's position is that in the absence of proof of fair trial prejudice, the Court is prohibited from a critical examination of a police investigation under the residual category of 'abuse of process'. It was also argued that such an analysis could result in artificially imposing a limitation period on criminal investigations which does not exist in law." - The Newfoundland and Labrador Supreme Court, Trial Division (General), rejected the Crown's argument - "The case before me necessarily involves reviewing an unusually protracted police investigation. A review of the causes of any delay could involve an examination of any number of factors. This type of examination by the Court of the causes of the delay is a search for the truth about what transpired to create the situation. The Court cannot be limited in its ability to review an alleged breach of the Charter rights of an individual. I conclude that, in the present case, a thorough examination of the facts surrounding the history of the delay is essential in order to properly adjudicate section 7 Charter breaches." - See paragraphs 126 to 131.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See first Civil Rights - Topic 3130 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See first Civil Rights - Topic 3130 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See first Civil Rights - Topic 3130 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that "The concept of abuse of process is very broad and can encompass any range of factors that, in totality, bring the administration of justice into disrepute." - See paragraph 171.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - [See first Civil Rights - Topic 3130 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See both Civil Rights - Topic 3130 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Civil Rights - Topic 3130 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See first Civil Rights - Topic 3130 ].

Counsel:

Tannis L. King and Jason N. House, for the Crown;

Stanley MacDonald, Q.C., and Paul A. Kennedy, for William Clarke;

Randolph J. Piercey, Q.C., for Terrance Reardon.

This case was heard on November 30, 2015, by Fitzpatrick, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on January 25, 2016.