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Is the Essar Centre court case complex enough to continue?

The Crown says yes. Trevor Zachary's lawyer says no. It's going to be up to a judge
2016-05-08 Janes Walk DMH-14
Donna Hopper/SooToday

The Crown conceded Friday that the time it has taken for a former city employee's fraud-related charges to get to trial exceeds the 30-month ceiling established last summer by Canada's highest court.

But prosecutor David Kirk argued that because of the complexity of the case the judge hearing a defence application for a stay of proceedings could find the delays were within a reasonable time.

He told Superior Court Justice James A.S Willcox that if he decides that Trevor Zachary's case is complex, with exceptional circumstances, the application should be dismissed and the trial, scheduled for next month, should go ahead.

Defence lawyer Bruce Willson argued earlier this week that his client's Charter right to a trial within a reasonable period of time has been violated, and the criminal proceedings against Zachary should be stayed.

The charges stem from Zachary's stint as Essar Centre's marketing and events manager, and are alleged to have occurred between 2008 and 2013.

Zachary, 43, who was charged in 2013, faces 18 charges — eight counts each of forgery and uttering forged documents and two counts of fraud.

The Supreme Court of Canada Jordan decision in July 2016 imposed a 30-month ceiling timeline for a case to be heard in the Superior Court of Justice. 

Kirk calculated the the total delay as 50 months, 25 days, and attributed 11.5 months of the delay to the defence — much more than the three months Willson suggested was caused by the defence.

"I did that very conservatively, underestimating," the assistant Crown attorney told the court. "The defence delay may be more."

The initial delay, after Zachary was charged, came on Oct, 28, 2013 when he made his first court appearance and his lawyer said he needed time to review the disclosure

Willson indicated on Jan. 13, 2014 he would be taking over, resulting in a 12-week delay because of the change in counsel, Kirk said.

"That time is attributed to the accused because it is wasted time."

Another four-week delay occurred because the defence wasn't ready to set dates for a judicial pre-trial, he said, adding seven more weeks for the time it took for the defence to supply its statement of issues for the preliminary hearing.

Zachary was committed to stand trial on March 2, 2016, following a lengthy preliminary inquiry in the Ontario Court of Justice.

On April 6, Willson filed a certiorari application opposing the commital on some of the counts.

It was heard on Aug. 22 and 23, and a decision dismissing the application was released on Sept. 25.

This caused a further delay of five months that Kirk maintained should also be attributed to the defence.

The trial date wasn't set until Oct. 26, because Willson was out of the country.

Noting Willson had referred to the case as a typical white collar fraud in his argument earlier this week, Kirk said the defence had a different view of its complexity during the earlier proceedings.

He outlined a number of examples in court transcripts, where Willson categorized evidence as intricate, talked about the large amount of documentation and asked for further time for preparation.

When you look at his own words, he sees it as a complex case, that seems to expand and grow, the assistant Crown attorney said. 

The defence's view changed post Jordan, Kirk said, suggesting "what he is saying now is an opportunistic way to portray it (the case) to the court."

Before the Jordan decision, he was saying something different, Kirk said. "You can't whistle and sing at the same time."

Kirk said it was incorrect to say the Crown had a complacent attitude in regards to getting the case organized and ready.

"The Crown was making efforts to move this along," and was "taking an active role in trying to truncate the process."

Wilcox is expected to release his decision in September.

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