Langdon,
J.:—The
accused
Folkard
and
Yacyshyn
are
charged
with
numerous
counts
of
income
tax
evasion.
In
short
terms,
the
counts
relate
to
alleged
fraudulent
misuse
of
the
scientific
research
tax
credit
program
by
the
two
accused
and
their
companies
during
the
taxation
years
1986
and
1987.
The
prosecution
has
attempted
to
set
out
in
summary
form
for
the
benefit
of
the
Court
the
nature
of
the
S.R.T.C.
tax
credit
scheme
and
an
overview
of
the
steps
alleged
to
have
been
taken
by
the
accused
to
violate
that
scheme.
Exhibits
2
and
5.
There
can
be
no
question
of
the
complexity,
both
of
the
scheme
and
of
the
alleged
activities
of
the
accused.
The
substance
of
the
allegations
is
that
the
various
parties
evaded
federal
income
tax
of
almost
eight
million
dollars.
An
income
tax
audit
of
the
accused's
affairs
began
in
February,
1988.
This
routine
audit
should
not
be
confused
with
the
subsequent
criminal
investigation,
which
began
in
or
about
the
month
of
May,
1989.
The
investigator
in
charge
was
Mr.
Sit.
His
main
assistant
was
Mr.
Kodric.
They
had
clerical
help
from
other
members
of
the
department.
The
pre-charge
investigation
was
relatively
brief
from
May
1989
until
January
1990.
In
January
1990,
applications
were
made
to
judges
of
the
General
Division
in
Toronto
who
granted
ten
search
warrants.
These
applications
were
made
under
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
which
have
since
been
declared
unconstitutional
by
the
Federal
Court
of
Appeal.
Mr.
Sit
made
it
plain
that
the
more
common
practice
in
cases
of
this
nature
is
to
execute
the
search
warrants
first,
then
to
take
some
time
reviewing
what
is
found,
and
then
subsequently,
to
lay
charges
against
and
arrest
persons
considered
criminally
culpable.
Mr.
Sit,
after
consultation
with
his
superiors
and
with
the
Department
of
Justice,
was
concerned
that
the
execution
of
search
warrants
might
cause
the
accused
to
flee
the
jurisdiction.
Consequently,
they
took
the
uncommon
step
of
arresting
the
two
accused
contemporaneously
with
the
execution
of
the
search
warrants.
This
executive
decision
will
be
the
subject
of
later
comment.
The
result
of
this
decision
was
to
expand
the
period
of
time
between
the
laying
of
charges
and
the
preliminary
inquiry
in
order
for
the
prosecution
to
make
disclosure.
Warrants
were
executed
and
the
accused
arrested
on
January
17,
1990.
Both
accused
were
held
for
bail.
Bail
was
granted
to
both.
Mr.
Yacyshyn
spent
approximately
ten
days
in
pre-trial
custody.
Mr.
Folkard
was
less
successful.
His
bail
was
set
so
high
that
he
could
not
meet
it.
On
April
11,
1990,
the
bail
was
varied
on
consent
from
$250,000
to
$150,000
and
he
was
released.
He
suffered
greatly
in
jail
from
the
pervasive
presence
of
cigarette
smoke
to
which
he
has
an
asthmatic
reaction.
At
a
pre-trial
conference
before
the
senior
administrative
regional
judge
of
the
Provincial
Division
on
May
3,
the
Crown
advised
that
it
anticipated
that
disclosure
would
take
approximately
a
year.
Naturally,
no
date
for
a
trial
or
preliminary
inquiry
could
be
set
until
disclosure
was
complete.
The
Judge
indicated
at
that
time
that
a
one-year
delay
in
making
disclosure
would
be
“totally
unacceptable”.
He
required
the
parties
to
reattend
before
him
to
report
on
disclosure
progress
in
July
and
October
of
1990.
One
year
after
arrest,
disclosure,
according
to
Crown
estimates,
was
95
per
cent
complete.
The
percentage
figure
was
arrived
at
by
the
simple
means
of
a
document
count.
That
may
not
be
a
relative
measure
of
the
importance
of
disclosure.
In
order
to
achieve
that
disclosure,
Messrs.
Sit,
Kodric
and
others
expended
about
3500
hours.
Following
disclosure,
there
was
a
brief
adjournment.
Then
a
preliminary
inquiry
was
set
to
commence
on
June
17,
1991.
It
was
almost
completed
by
July
18,
1991.
The
parties
agreed
that
the
preliminary
would
take
place
in
Orangeville,
where
courtroom
space
was
more
readily
available.
It
seems
a
reasonable
inference
that
one
product
of
the
delayed
disclosure
was
to
reduce
the
potential
length
of
the
preliminary
inquiry.
Just
before
the
preliminary
inquiry,
the
remaining
disclosure
(five
per
cent
by
document
count)
was
made.
That
involved
another
1300
hours
of
employee
time.
Defence,
however,
have
indicated
that
that
disclosure
was
also
very
significant.
It
contained
the
will-say
statements
of
10
out
of
23
witnesses.
The
defence
did
not
seek
any
adjournment
of
the
preliminary
inquiry
by
reason
of
the
late
disclosure.
It
is
possible
that
late
disclosure
might
have
influenced
any
consideration
of
summary
trial.
On
July
18,
1991,
the
inquiry
was
adjourned
for
two
months
at
the
request
of
the
prosecution
for
the
purpose
of
producing
further
documents.
On
September
6,
1991,
the
matter
was
further
adjourned,
on
consent
of
all
parties,
in
order
that
they
might
prepare
submissions
to
be
heard
on
November
7.
Following
submissions,
the
preliminary
inquiry
judge
adjourned
the
matter
for
a
month-and-a-half
until
December
19
for
the
purpose
of
considering
his
decision
on
the
issue
of
committal.
Defence
had
advised
the
preliminary
inquiry
judge
at
the
opening
of
the
preliminary
that
the
matter
of
committal
would
be
seriously
contested.
Yacyshyn
was
discharged
on
a
number
of
counts.
On
December
19,
the
judge
reported
that
his
decision
was
not
ready;
the
matter
was
further
adjourned
to
February
21.
When
counsel
attended
on
that
day,
they
discovered
that,
owing
to
prior
commitments,
the
judge
was
sitting
in
another
jurisdiction.
The
matter
was
further
adjourned
to
March
11,
1992,
for
judgment.
On
March
11,
1992,
the
judge
indicated
that
he
had
considered
the
evidence
taken
and
refreshed
his
memory
from
transcripts.
He
said,
I
have
prepared
written
reasons
for
the
conclusions
I
am
about
to
enunciate.
They
are
not
yet
available
and
will
be
reproduced
as
quickly
as
possible.
I
do
not
intend
to
spend
an
hour
or
more
this
morning
reviewing
my
reasons.
He
then
announced
the
result
of
his
deliberations,
which
was
to
commit
Mr.
Folkard
on
all
counts
save
one
that
had
been
withdrawn
and
to
commit
Mr.
Yacyshyn
on
all
counts
save
for
six.
On
those
counts
which,
according
to
counsel,
were
the
most
important
or
serious
counts
Yacyshyn
was
facing,
he
was
discharged.
The
preliminary
inquiry
judge
then
stated,
I
will
make
the
written
reasons
in
this
matter
available
as
soon
as
they
can
physically
be
handled
by
the
staff
that
I
have
at
my
disposal.
The
prosecution
and
the
defence
have,
on
a
number
of
occasions
since
the
committal
date,
made
discreet
inquiries
concerning
the
reasons
for
committal.
As
of
January
14,
1993,
they
have
not
been
forthcoming.
In
theory,
at
least,
a
review
of
the
decision
to
commit
might
be
possible
without
those
reason;
it
is,
in
practical
terms,
unrealistic
considering
that
the
preliminary
inquiry
yielded
13
volumes
of
evidence.
Defence
counsel
have
not
indicated
that
they
were
seriously
seeking
to
challenge
the
committal
for
trial,
but,
of
course,
it
would
be
difficult
to
make
that
determination
absent
the
reasons.
Defence
counsel
state
to
this
Court
that
the
failure
of
the
preliminary
inquiry
judge
to
give
his
reasons
is
having
a
serious
impact
upon
their
ability
to
proceed
to
trial,
and
they
have
indicated
that
it
is
possible
that
between
now
and
the
trial
dates,
adjournment
motions
may
be
brought
based
on
their
failure
to
obtain
these
reasons.
The
aggregate
time
elapsed
through
the
Provincial
Division
was
some
26
months.
In
attempting
to
characterize
that
time,
I
have
relied
in
particular
upon
two
cases.
The
cases
are
R.
v.
Rahey,
[1987]
1
S.C.R.
588,
39
D.L.R.
(4th)
481,
and
the
case
of
R.
v.
Atkinson
(1991),
5
O.R.
(3d)
301,
68
C.C.C.
(3d)
109
(C.A.).
These
cases
were
suggested
by
counsel
as
particularly
relevant
because
they
also
dealt
with
the
issue
of
unreasonable
delay
in
the
context
of
highly
complex
cases
involving,
respectively,
income
tax
evasion
and
fraud.
The
case
of
Atkinson
concerned
itself
with
a
fraud
of
seven
million
dollars,
approximately
the
same
magnitude
as
the
amount
of
tax
alleged
to
have
been
evaded
in
this
case.
Rahey,
supra,
dealt
with
income
tax
evasion
alleged
over
a
period
of
approximately
six
years
in
an
amount
of
approximately
$130,000.
Both
of
those
cases
proceeded
to
trial
in
the
Provincial
Court,
a
factor
which
distinguishes
them
from
the
present
case.
The
Rahey
case
must
be
read
and
interpreted
in
the
light
of
the
many
subsequent
decisions
from
the
same
court
dealing
with
paragraph
11(b),
principally,
R.
v.
Askov,
[1990]
2
S.C.R.
1199,
74
D.L.R.
(4th)
355.
Rahey
As
I
read
the
Rahey
decision,
it
involved
a
pre-charge
investigation
of
three
years
and
four
months.
The
systemic
delay
between
the
laying
of
the
charge
and
the
commencement
of
the
trial
was
17
months.
The
trial
proceeded
over
a
period
of
approximately
nine
months.
In
the
result,
the
total
time
elapsed
between
the
laying
of
the
charge
and
the
conclusion
of
the
evidence
at
the
trial
was
26
months.
At
the
conclusion
of
the
evidence,
the
defence
brought
a
motion
for
a
directed
verdict.
The
trial
judge
reserved
his
ruling
and
ultimately,
on
his
own
motion,
adjourned
the
case
on
20
separate
occasions
between
the
conclusion
of
the
motion
on
December
13,
1982,
and
November
18,
1983.
The
Crown
applied
for
mandamus
November
1,
1983,
and
the
accused
applied
under
paragraph
11(b)
on
November
14.
On
November
18,
1983,
the
trial
judge
rendered
a
perfunctory
decision
allowing
the
application
for
a
directed
verdict.
The
facts
of
that
case
indicated
that
the
accused
had
cooperated
substantially
in
bringing
the
matter
to
trial
in
a
speedy
fashion.
At
page
613
(D.L.R.
498),
Lamer,
J.
stated
that
the
26
months
to
trial
“was,
though
lengthy,
.
.
.
not
in
violation
of
the
accused's
rights
under
paragraph
11(b)
given
‘the
time
requirements
inherent
in
the
nature
of
the
case'
”.
However,
when
the
unjustified
additional
lapse
of
time
caused
by
the
trial
judge
(11
months)
was
inserted
into
the
overall
period,
thereby
making
the
overall
delay
37
months,
he
concluded
that
an
infringement
of
paragraph
11(b)
rights
had
occurred.
Atkinson
The
matter
of
Atkinson,
supra,
involved
a
complex
fraud.
The
investigation
ran
from
1986
until
March,
1989,
a
period
of
approximately
three
years.
The
charges
were
laid
in
January
1989,
and
disclosure
was
made
(following
Herculean
efforts
on
the
part
of
the
investigating
officer)
in
approximately
5
/2
months.
It
was
presented
to
the
defence
and
to
the
Crown
in
June
of
1989.
A
preliminary
inquiry
was
scheduled
in
August
of
1989
but
did
not
proceed
on
that
date.
The
next
available
date
for
continuation
of
the
preliminary
inquiry
was
April
1990.
In
April
1990,
the
Crown
finally
persuaded
defence
counsel
to
withdraw
from
the
case,
as
he
was
in
a
position
of
obvious
conflict.
This
left
one
of
two
accused
unrepresented
at
the
commencement
of
a
lengthy
fraud
hearing.
The
matter
was,
therefore,
adjourned,
ultimately
until
August
1990,
so
that
that
accused
could
retain
counsel.
The
matter
was
then
set
to
proceed
to
trial
in
December
1990,
at
which
time
an
11(b)
motion
was
brought
and
allowed.
The
total
time
in
the
Provincial
Division
was
23
/2
months.
The
Court
characterized
that
time
as
follows:
intake
time,
to
the
conclusion
of
disclosure,
5/2
months;
two
months
to
the
preliminary
inquiry,
a
reasonable
but
nonetheless
systemic
delay;
eight
months
to
the
adjourned
inquiry,
systemic
delay;
four
months
referable
to
retaining
new
counsel,
not
systemic.
The
Court
held
that
the
time
between
August
and
December,
1990,
had
been
waived
by
the
parties
by
their
conduct.
On
this
analysis,
the
systemic
delay
involved
in
the
proceedings
to
December,
1990,
was
no
more
than
eight
to
ten
months.
The
Court
viewed
the
51/2
months
leading
to
disclosure
as
a
reasonable
intake
time
considering
the
complexity
of
the
case.
The
Court
of
Appeal
set
aside
the
order
of
the
trial
judge
staying
the
proceedings
and
remitted
the
matter
for
trial.
The
prosecutorial
choice
made
in
both
the
case
of
Rahey
and
Atkinson
was
to
conclude
the
gathering
of
evidence
through
a
fairly
lengthy
pre-charge
investigation
before
arresting
the
persons
accused.
The
result
of
this
decision
was
a
relatively
short
time
between
institution
of
criminal
proceedings
and
the
trial.
In
the
case
of
Rahey,
17
months,
which
was
viewed
as
acceptable
by
the
Supreme
Court
of
Canada,
and
in
the
case
of
Atkinson,
5'/2
months,
which
was
viewed
as
acceptable
by
the
Ontario
Court
of
Appeal.
Applying
a
similar
analysis
here,
I
find
that
intake
time
was
precisely
one
year
from
the
charge
date
of
January
17,1990,until
the
disclosure
date,
January
17,
1991.
The
issue
of
pre-trial
custody
served
by
Messrs.
Folkard
and
Yacyshyn
is
better
dealt
with
under
the
heading
of
prejudice.
I
consider
from
January
17
to
June
17,
1991,
six
months,
to
be
systemic
delay.
The
preliminary
inquiry
occupied
the
Court
until
July
18,
at
which
time
the
prosecution
sought
and
received
an
adjournment
for
an
additional
two
months.
This
delay
counts
against
the
Crown.
The
delay
from
September
to
November,
I
would
not
view
as
systemic
or
institutional
delay.
Considering
that
there
were
13
volumes
of
evidence,
it
seems
to
me
that
two
months
to
prepare
submissions
on
contested
committal
is
a
period
which
is
inherent
in
the
nature
of
the
complex
case.
The
preliminary
inquiry
judge
was
entitled
to
a
reasonable
period
of
time
to
consider
submissions
and
reach
his
conclusions.
The
aggregate
time
was
from
November
7
until
March
11—in
all,
a
period
of
four
months.
Of
that
four
months,
one
month
should
count
against
the
Crown
as
systemic
delay
because
the
judge
had
to
be
elsewhere
on
February
21.
This
necessitated
an
adjournment
until
March
11.
Therefore,
in
the
Provincial
Division,
the
aggregate
time
elapsed
was
approximately
27
months.
Of
this
period,
intake
represented
one
year.
I
recognize
that
full
disclosure
was
not
complete
until
18
months
had
elapsed.
However,
the
remaining
late
disclosure
did
not
delay
the
inquiry.
The
delay
which
is
systemic
or
attributable
to
the
Crown
totals
nine
months.
Approximately
six
months
for
argument
and
judgment
must
be
viewed
as
relatively
neutral
time
which
had
to
be
expended
considering
the
time
limits
inherent
in
the
complexity
of
the
case.
Two
issues
arise
here
which
have
not
directly
been
canvassed
in
the
other
cases.
The
first
is
what
result,
if
any,
flows
from
the
decision
of
the
prosecution
in
this
case
to
arrest
the
accused
contemporaneously
with
the
execution
of
the
search
warrants
rather
than
to
adopt
the
more
common
procedure
of
delaying
the
arrest
until
the
information
developed
from
the
search
warrants
was
at
least
partially
digested.
It
is
clear
that
this
decision
starts
the
paragraph
11(b)
clock
running
earlier.
The
second
issue,
which
is
not
precisely
the
same
as
in
Rahey,
is
what
effect
is
to
be
given
to
failure
of
the
judge
at
the
preliminary
inquiry
to
deliver
his
reasons.
With
respect
to
the
timing
of
the
laying
of
the
charges,
it
was
known
to
Mr.
Sit
from
the
beginning
that
he
could
have
proceeded
with
the
search
warrants
alone
and
laid
the
charges
later.
That,
after
all,
was
the
process
in
Raney
and
Atkinson.
The
result
of
such
a
process
would
be
to
reduce
the
post-charge
delay
in
providing
disclosure.
He
was
examined
in
some
detail
as
to
why
he
chose
to
lay
the
charges
early.
It
was
clear
that
Mr.
Sit
made
a
conscious
and
informed
decision
after
consulting
both
his
regional
director
of
taxation
and
the
Department
of
Justice.
Mr.
Sit's
reasons
were
as
follows:
First
of
all,
he
considered
the
enormous
quantum
of
liability.
Almost
eight
million
dollars
in
evaded
tax.
Next,
he
considered
the
use
by
the
accused
of
nominees,
making
it
difficult
to
trace
assets
and
dealings.
Next,
he
considered
information
he
had
received
that
Folkard
had
business
connections
in
Buffalo
which
might
make
it
easier
for
him
to
flee
the
jurisdiction
and
establish
himself
in
the
United
States.
He
also
considered
what,
in
his
opinion,
was
a
suspicious
transfer
of
the
matrimonial
home
by
Mr.
Folkard
to
his
wife.
He
considered
this
not
merely
as
a
possible
attempt
to
defeat
creditors,
but
also,
as
evidence,
for
some
reason,
that
he
might
skip
the
country.
He
considered
also
information
which
he
had
that
the
wife
of
one
of
the
accused
had
dual
American
and
Canadian
citizenship,
and
he
considered
information
that
he
had
received
that
persons
accused
in
other
S.R.T.C.
cases
had
fled
the
country.
it
is
fairly
clear
from
his
examination
that
he
did
not
have
information
specific
to
these
two
individuals
of
any
intent
to
flee
the
country.
He
also
conceded
that
the
normal
process
would
be
to
arrest
at
a
point
in
time
later
than
the
execution
of
the
search
warrants.
I
have
already
alluded
to
the
fact
that
he
and
Mr.
Kodric
and
others
expended
a
total
of
4815
hours
in
preparing
disclosure
between
the
laying
of
the
charge
and
May
31,
1991.
The
significance
of
that
number
can
perhaps
be
understood
if
one
considers
an
individual
working
a
40-hour
week
50
weeks
a
year
as
running
up
a
total
of
2,000
hours
in
a
year.
It
is
obvious,
therefore,
that
substantially
in
excess
of
two
full
man-years
were
spent
in
preparing
the
disclosure
in
the
16
months
between
charge
and
preliminary
inquiry.
It
would
be
very
easy
for
me,
with
the
perfect
hindsight
acquired
with
the
passage
of
time,
to
find
fault
with
the
decision
to
arrest
contemporaneously
with
the
execution
of
search
warrants.
It
would
also
be
very
easy
for
me
to
criticize
Mr.
Sit,
as
perhaps
I
did
during
the
hearing,
for
choosing
to
allocate
only
two
investigators
to
the
case
when
perhaps
he
could
have
enlisted
the
assistance
of
several
other
investigators
and
thereby
shortened
the
time
necessary
for
the
preparation
of
disclosure.
Atkinson
recognized
the
propriety
of
5
/2
months
to
make
disclosure.
Put
in
short
terms,
how
much,
if
any,
of
the
de
facto
12-month
intake
period
should
I
consider
as
neutral
intake
time
and
how
much
of
it,
if
any,
should
I
weigh
against
the
Crown
as
unacceptable
delay?
At
pages
126
and
127
(O.R.
317-18)
of
the
Atkinson
decision,
Osborne,
J.A.,
speaking
for
the
three-member
Court,
stated
the
following:
It
seems
to
me
that
much
of
the
work
done
in
the
preparation
of
the
disclosure
briefs
had
to
be
done
by
someone
who
knew
this
case.
That
person
had
to
be
Detective
Hayes,
in
the
circumstances.
It
was
Detective
Hayes
who
knew
how
this
case
had
been
put
together.
He
knew
what
witnesses
were
relevant
to
each
count.
Because
he
knew
the
case,
he
was
able
to
summarize
the
witnesses’
evidence
(having
interviewed
most
of
the
witnesses)
and
thus
prepare
will-say
statements
and
summaries
that
would
be
essential
for
Crown
counsel
and
helpful
to
defence
counsel.
There
is
no
doubt
that
the
preparation
of
disclosure
briefs
began
about
two
months
after
the
January
1989
information
was
laid,
Detective
Hayes
was
then
involved
in
a
continuing
investigation.
He
thus
decided
to
delay
preparing
disclosure
briefs.
I
do
not
think
that
the
practical
option
of
beginning
disclosure
much
earlier
was
open
to
him.
It
would
not
have
made
much
sense
to
bring
someone
new
into
the
picture
to
finish
the
investigation,
thereby
freeing
Detective
Hayes
to
work
on
the
required
disclosure
briefs.
Nor,
as
I
have
noted,
was
it
practical
for
someone
other
that
Detective
Hayes
to
bear
responsibility
for
the
preparation
of
disclosure
briefs.
One
solution
to
any
suggestion
of
disclosure-induced
delay
would
have
been
to
delay
the
laying
of
charges
until
the
investigation
was
finished
and
disclosure
briefs
had
been
prepared.
That
is
an
option
often
open
in
cases
involving
complex
fraud
allegations,
but
not
generally
open
in
street-crime
allegations.
.
.
.
I
am
not
prepared
to
say
that
there
should
be
a
firm
rule
that
disclosure
should
be
completed,
in
cases
such
as
this,
when
the
charges
are
laid.
Nor
do
I
think
that
it
is
realistic
to
impose
fixed
time-frames
within
which
disclosure
must
be
made.
Rules
of
this
sort
would
be
impractical
and
would
simply
lead
to
the
police
and
prosecuting
authorities
delaying
the
laying
of
charges.
Disclosure
could
have
been
attended
to
earlier
had
Detective
Hayes
had
more
assistance
in
the
investigation.
Some
deference
should
be
given
to
decisions
made
concerning
the
commitment
of
investigative
resources
to
a
particular
matter,
just
as
deference
must
be
given
to
political
decisions
concerning
the
provisions
of
court-house
facilities
and
Crown
Attorneys:
see
Askov,
supra,
at
page
1224
(D.L.R.
384).
The
delay
occasioned
by
the
5
/2
months
it
took
to
complete
disclosure
was,
in
my
view,
minimal,
as
it
relates
to
the
time
when
the
preliminary
hearing
or
trial
would
otherwise
have
taken
place.
In
the
circumstances
of
this
case.
.
.no
substantial
time
gains
would
likely
have
accrued
had
disclosure
briefs
been
completed
sooner.
The
real
culprits
in
this
case
were
systemic
delay
and,
to
a
lesser
extent,
problems
related
to
the
conflict
issue,
not
the
timing
of
disclosure.
Thus,
it
seems
to
me
that
relatively
little
weight
should
be
given
to
that
part
of
the
delay
attributable
to
disclosure.
I
must
recognize,
however,
that
the
disclosure
in
this
case
took
double
the
time
referred
to
in
Atkinson.
On
the
other
hand,
I
must
not
weigh
the
decision
of
Mr.
Sit
and
those
with
whom
he
consulted
in
jewellers’
scales.
The
law
obliges
me
to
grant
a
large
degree
of
deference
to
that
decision.
It
is
true
that
the
senior
judge
of
the
Provincial
Division
warned
Crown
counsel.
It
is
also
true
that
the
number
of
hours
expended
in
preparation
of
disclosure
indicated
major
efforts
on
the
part
of
Mr.
Sit
and
his
fellow
investigator.
The
issues
are
complex.
Exhibits
2
and
5
disclose
a
very
tangled
web
of
dealings
alleged
to
have
been
undertaken
by
the
accused
and
their
corporations.
Not
without
some
hesitation,
I
reach
the
conclusion
that
the
12
months
to
make
disclosure
(and
I
include
in
this
the
six
months
for
the
additional
disclosure
which,
though
unfortunate
in
its
timing,
did
not
delay
the
preliminary
inquiry)
must
be
counted
as
intake
time
and
be
viewed
as
relatively
neutral.
The
lateness
of
the
last
disclosure
made
immediately
before
the
preliminary
inquiry
could
have
prevented
the
accused
before
the
preliminary
inquiry
could
have
prevented
the
accused
from
re-electing
a
speedy
trial
process.
This,
of
course,
represents
a
prejudice
to
their
rights.
The
prejudice
may
have
been
theoretical
rather
than
practical
because
it
does
not
appear
that
there
was
ever
any
serious
discussion
or
intention
on
the
part
of
the
accused
to
proceed
to
summary
trial
after
the
prosecution
had
obtained
the
necessary
permission
to
prosecute
by
indictment.
I
must
next
address
the
failure
of
the
preliminary
inquiry
judge
to
provide
the
reasons
for
committal
and
discharge.
That
failure
has
not
delayed
setting
the
trial
date.
However,
that
delay
may
yet
seriously
embarrass
the
commencement
of
the
trial.
Defence
counsel
have
suggested
that
the
reasons
for
committal
are
sufficiently
important
to
them
that
non-delivery
may
become
the
subject
of
a
discrete
adjournment
application.
Obviously,
the
failure
to
provide
those
reasons
has
effectively
prevented
a
review
of
the
decision
by
certiorari.
Theoretically,
the
Court
could
undertake
a
review
of
the
decision
having
nothing
more
than
the
announced
result
and
the
13
volumes
of
evidence.
The
result
of
such
an
undertaking,
however,
would
be
a
potentially
colossal
expense
and
waste
of
time
to
accused
who,
according
to
their
affidavits,
are
already
suffering
financially.
The
failure
to
deliver
those
reasons
had
made
it
impractical
to
proceed
with
a
certiorari
application.
This
has
caused
prejudice
to
the
accused
and
to
the
Crown
because
it
represents
an
infringement
of
their
right
to
make
application
for
a
prerogative
remedy.
However,
there
has
been
no
statement
by
either
party
that,
based
on
their
perception
of
the
inquiry,
they
intended
such
an
application.
The
absence
of
the
reasons,
therefore,
still
possesses
the
potential
to
embarrass
or
delay
the
trial,
but
that
potential
remains
inchoate.
The
defence
have
decided
to
proceed
with
the
setting
of
a
trial
date
in
the
absence
of
the
reasons.
I
cannot
find
that
the
failure
of
the
preliminary
inquiry
judge
to
release
the
reasons
for
his
decision
has
yet
resulted
in
a
delay
of
the
trial.
The
progress
of
the
cases
in
the
general
division
When
Messrs.
Folkard
and
Yacyshyn
were
in
the
Provincial
Division,
they
were
jointly
charged
on
one
information.
Following
committal
for
trial,
prosecution
laid
two
indictments,
one
against
Mr.
Folkard
and
certain
corporate
parties,
and
another
separate
indictment
against
Mr.
Yacyshyn.
The
accused
were
first
before
the
General
Division
April
3,
1992.
The
matter
was
adjourned
to
May
1,
at
which
time
a
pre-trial
conference
was
set
for
June
10.
A
second
pre-trial
conference
was
held
before
Justice
Goodearle
August
14
and
September
11.
Trial
was
fixed
for
November
30.
Had
that
trial
proceeded,
the
matter
would
have
been
concluded
in
the
General
Division
within
a
period
of
approximately
eight
or
nine
months
at
the
outside.
Considering
the
complexity
of
the
case
and
the
time
limits
suggested
by
Askov
for
ordinary
cases,
there
could
be
no
complaint.
However,
when
November
arrived,
Mr.
Folkard
was
forced
to
seek
an
adjournment
because
of
problems
which
he
faced
retaining
counsel
for
the
trial.
He
has
conceded
that
the
two
months
following
November
are
neutral
for
paragraph
11(b)
purposes.
The
matter
is
now
scheduled
to
be
tried
in
February
and
March.
Assuming
that
the
trial
is
completed
by
March,
1993,
the
aggregate
time
occupied
by
the
case
will
have
been
approximately
39
months:
27
months
in
the
Provincial
Division,
of
which
nine
can
be
considered
institutional
delay;
and
12
in
the
General
Division,
of
which
I
think
it
would
be
fair
to
consider
nine
months
as
institutional
delay.
The
balance
of
the
time
is
neutral,
representing
intake
time
or
time
which
is
inherent
because
of
the
nature
and
complexity
of
the
case,
or
waived
time.
I
have
now
examined
the
length
of
the
delay,
the
reasons
for
the
delay,
and
any
waiver.
The
final
factor
which
must
be
weighed
in
the
balance
is
the
issue
of
prejudice.
I
accept
that
there
is
a
presumptive
prejudice
which
increases
with
the
passage
of
time.
With
respect
to
Mr.
Folkard,
I
recognize
that
he
spent
a
very
unpleasant
and
somewhat
lengthy
period
of
time
in
pre-trial
incarceration.
According
to
what
prosecution
states
at
this
hearing,
it
was
not
the
intention
of
the
prosecution
to
obtain
a
detention
order
but,
rather,
only
to
obtain
conditions
of
bail
which
would
assure
that
the
accused
would
attend
their
trial.
It
seems
to
me
that
to
accomplish
such
a
purpose
a
somewhat
excessive
period
of
time
was
spent
in
custody
by
My.
Folkard.
The
period
of
pre-trial
detention
suffered
by
Mr.
Yacyshyn,
while
significant,
was
much
more
reasonable.
Mr.
Folkard
was
put
to
substantial
inconvenience.
His
business
requires
him
to
travel
out
of
Canada
and,
when
he
did
so,
it
was
necessary
for
him
to
apply
each
time
to
regain
his
passport
and
file
an
itinerary.
This
precluded
meetings
on
short
notice.
Mr.
Folkard,
of
course,
is
presumed
innocent
and
is
a
chartered
accountant
by
profession.
In
September,
1991,
Revenue
Canada
misplaced
his
passport
and,
before
it
was
located,
substantially
delayed
a
business
obligation,
which
resulted
at
least
in
part
in
the
loss
of
a
contract.
He
secured
an
amendment
of
his
bail
in
March
of
1992
permitting
him
to
retain
his
passport
and
file
itineraries
concerning
out-of-country
travel.
He
complains
of
difficulty
in
locating
defence
witnesses
and
of
failing
memories.
He
complains
that
his
life
has
been
on
hold.
He
states
accurately
that
he
has
done
nothing
to
delay
the
proceedings.
He
has
in
many
ways
facilitated
their
progress.
He
makes
a
point
of
saying
that
the
failure
of
the
preliminary
inquiry
judge
to
provide
reasons
for
committal
for
over
a
year
is
something
that
he
cannot
understand
and
concerns
him
greatly.
Mr.
Yacyshyn
complains
that
he
was
unable
to
set
an
early
date
for
his
preliminary
inquiry.
He
did
not
waive
his
right
to
trial
within
a
reasonable
time.
He
was
discharged
of
the
five
more
serious
counts
following
the
preliminary
inquiry.
He
has
appeared
in
the
Provincial
Division
37
times
over
a
period
of
26
months.
He
has
no
criminal
record.
The
charges
have
caused
him
and
his
family
great
anxiety.
He
points
out
that
his
father
has
suffered
three
heart
attacks
and,
although
there
is
no
medical
evidence,
it
is
the
deponent's
opinion
that
the
charges
have
contributed
to
his
father’s
ill
health.
He
complains
that
the
lack
of
finality
caused
his
marriage
to
break
down
for
five
months,
although
his
wife
has
now
returned
and
they
are
undergoing
counselling.
He
says
that
his
children
have
lost
respect
for
him
and
he
believes
that
his
son,
who
is
17,
left
home
because
of
the
charges
and
that
there
has
been
a
breakdown
in
his
relationship
with
him.
He
claims
to
have
gained
50
pounds
of
weight
and
to
suffer
stomach
disorders
and
vomiting.
He
has
suffered
financially.
A
former
counsel
is
suing
him
for
$21,000.
He
has
reported
to
the
police
over
three
years
at
least
75
times.
He
has
been
prohibited
travel
outside
of
the
United
States
or
Canada,
despite
past
practices
of
vacationing
elsewhere.
He
complains
that
the
cost
of
the
charges
has
resulted
in
his
house
being
sold
by
the
mortgagee
under
power
of
sale.
He
is
now
living
in
rented
premises.
Mr.
Folkard's
bail
terms
require
him
to
report
to
Peel
Police
every
second
Sunday.
I
have
alluded
to
other
aspects
of
prejudice
to
speedy
trial
rights
and
to
the
right
to
review
the
committal.
I
must
decide
whether
the
societal
interest
of
bringing
these
serious
charges
to
trial
outweighs
the
interests
of
these
accused
to
a
trial
speedier
than
what
the
system
has
provided
for
them.
The
overall
period
of
time
will
be
approximately
39
months
for
Mr.
Folkard,
slightly
shorter
for
Mr.
Yacyshyn.
I
have
assessed
an
aggregate
institutional
delay
of
approximately
18
months.
This
is
approximately
the
same
institutional
delay
(although
not
the
same
aggregate
delay)
as
was
found
by
Justice
Speyer
in
the
case
of
The
Queen
v.
Donelian,
April
3,
1991,
unreported.
In
a
similar
type
of
case,
he
dismissed
the
paragraph
11(b)
motion.
If
I
accept
that
in
simpler
cases,
delay
of
up
to
eight
months
can
be
tolerated
in
the
Provincial
Division
(R.
v.
Sharma,
[1992]
1
S.C.R.
814,
12
C.R.
(4th)
45)
and
up
to
eight
months
in
the
General
Division
(Askov),
I
cannot
conclude
that
18
months
delay
in
these
cases
is
unreasonable.
Application
dismissed.
Motion
dismissed.