As a result, fraud charges have been thrown out against the owner of the once-celebrated real estate development company Myles-Legér and the company’s accountant.
“I find this situation to be entirely unacceptable,” Justice Jane Fitzpatrick said in entering a stay of proceedings in the case of the company’s co-owner William Legér Clarke and accountant Terry Reardon.
The judge accepted a defence application and ruled that the lengthy delay breached the men’s charter rights.
“The affront to the justice system and the prejudice to the applicants occasioned here by the delay is an abuse of process that would be further aggravated now by conducting a trial,” Fitzpatrick said in her written decision, released Monday.
Clarke and Reardon were each charged with 38 counts of fraud and a single count of conspiracy to commit fraud, which related to the alleged mishandling of mortgage transactions between September 2000 and May 2004.
Their trial was set to begin next week. But the judge first had to deal with the application. Defence lawyers Stanley MacDonald (for Clarke) and Randy Piercey (for Reardon) had argued, “The extreme length of time for the investigation and its impact on the applicants’ ability to make full answer and defence,” and “the egregious police conduct, resulting in this lengthy delay” breached their clients’ rights.
They pointed to several examples of how police dragged their heels — both before and after charges were laid.
The investigation began in June 2004. Yet, charges weren’t laid until December 2012.
They said while the RCMP was aware of the magnitude of the case being investigated in 2004, it took until February 2007 for the first search warrant to be obtained. It was not until May 2009 when the next search warrant was obtained.
It took years for investigators to request transcripts, conduct interviews and get witness statements.
It also didn’t help that several officers, including those in charge of the investigation, changed at various times over the course of the investigation, meaning staffing issues and lack of resources impacted the case. Some of the officers were even reassigned to other cases.
“The police simply did not go about retrieving evidence or witness statements in a timely fashion,” the judge said in her written decision.
“This investigation was not a priority and was not reasonably conducted as regards working to completion of it.”
As for the post-charge delays, the judge noted that disclosure in the case was not only voluminous, consisting of about 48,000 pages, it wasn’t organized in a reasonable fashion. File formatting was confusing and information was missing.
It prevented lawyers from entering a plea and moving the case forward.
For several years after the charges were laid, further disclosure continued to be added.
The judge also pointed out that having the charges hanging over the defendants’ heads for so long, along with the humiliation of the highly publicized case, took a social and emotional toll on their personal lives.
Formed in 1999, Myles-Legér would develop properties — such as condominiums and personal residences — for sale to members of the public. During this time, William Parsons Law Office was retained.
Transactions for the properties were handled by either Parsons or his associate lawyer, Glenn Bursey, who is now deceased.
Those purchasing properties would forward funds to either Parsons or Bursey to pay out existing mortgages. These funds were supposed to be held in trust until this transaction was completed by the lawyer.
In this case, many of these mortgages were never paid out.
The allegation was that funds were often redirected by Parsons or Bursey back into Myles-Legér at the request of William Clarke or Reardon.
In January, Parsons pleaded guilty to fraud over $5,000 and was sentenced to a three-year jail term for his part.
Clarke’s brother, Randell Clarke, was co-owner and was initially a co-accused, but the Crown withdrew charges against him in 2014.