Lien vers la décision
[81] Subject to a few specific exceptions, the laying of indictable criminal charges is not subject to limitation periods (Rourke). (See also R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701.) Limitation periods in criminal law are the province of parliament, subject to judicial scrutiny only for constitutional compliance and the ability of courts to control their own processes to protect accused persons through the doctrine of abuse of process. The invocation of section 7 of the Charter to assist an accused person whose regularly constituted charges involve significant pre-charge delay has been carefully confined to few and unusual circumstances where demonstrated prejudice to his or her fair trial rights or abuse of process is found.
[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.
[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.
[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.
[101] The Judge also found that the Respondents suffered prejudice due to investigative delay. If established, such prejudice could result in a finding that the Respondents were deprived of their section 7 rights to security of the person, and could result in a breach if the deprivations were not in accordance with the fundamental principles of justice.
[103] I do not doubt that the Respondents were distressed by the media and community attention to the bankruptcy or that they suffered prejudice as a result. And I do not doubt that they had difficulties finding work after HE’s bankruptcy. HE’s bankruptcy and the surrounding circumstances were a big story in this small province. However, the state did not cause the bankruptcy or create the media and community attention to it, and neither did delay in the investigation create the publicity or gossip. In this regard, I note from the Judge’s decision that Mr. Parsons suffered damage to his reputation in 2002 and lost his new job in 2004. The loss of his reputation and employment at these early points in the investigation can hardly be attributed to investigatory delay. Like the prejudice in Blencoe, this prejudice clearly resulted from the Respondents’ association with HE, HE’s bankruptcy and media and public attention to it. While I agree that the Respondents’ suspicions that they were subjects in the ongoing investigation caused them stress and anxiety, I do not accept that this stress anxiety has “a sufficient causal connection” (Bedford) to actions of the state, or is of a magnitude so as to result in a deprivation of their security of the person (Blencoe). Neither could I say that any exacerbation of their stress as a result of delay was not in accordance with the principles of fundamental justice. The delay was due to the massive and complex investigation legitimately carried out.
Review of the Investigation
[104] The Judge’s remarks about when the Crown ought to have laid charges against the Respondents show that he engaged in a review of the efficiency of the Crown’s investigation. While some review of Crown conduct in an investigation is required if abuse of process is alleged, judicial scrutinizing of an investigation for efficiency is, in my view, neither required nor appropriate. In my opinion, it is not part of the judicial role, as Rourke, Mills, L.(W.K.) and Young make clear. The reason why it is not the Judge’s role to scrutinize an investigation for efficiency is because doing so conflates the roles of the judicial and executive branches of government.
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