Well I was wrong. I'd totally forgotten about Dr. Peter Balogh, a Burnaby Dentist, operating in my home municipality;
https://www.vccid.com/about-us/meet-dr-balogh/
Balogh has had his ups and downs.
Up - Years of cheating the taxman and keeping all of his very substantial income.
Down - Charged with income tax evasion and convicted but . . . .
Up - Charges stayed because of delay which meant he was a free man.
Down - Delay decision reversed on crown's appeal and conviction reinstated.
Up - Granted permission to appeal the crown's successful appeal.
That last one might seem a bit confusing. How can you appeal a decision by the British Columbia Court of Appeal at the same court? I wrote about this in a prior posting;
A bit of explanation needed on that one. We have three levels of court in British Columbia that can be involved in tax evasion cases, the Provincial Court of British Columbia, the Supreme Court of British Columbia, and the British Columbia Court of Appeal. The Provincial and Supreme courts are the trial courts. The Supreme Court is the higher court. The BCCA hears appeals from both. However appeals of summary conviction decisions from trials at the Provincial Court (as this one was) are first heard by a single judge of the Provincial Court. My previous posting was about the Crown's appeal of Balogh's trial decision heard by the single judge. Balogh had the right to appeal this decision to the BCCA and he has just filed an application for leave to appeal to the Court of Appeal.
You can read the judgment allowing him to appeal here;
https://www.canlii.org/en/bc/bcca/doc/2 ... ca367.html
The judgment noted that;
[4] In order to obtain leave to appeal to this court from an order of a summary conviction appeal judge pursuant to s. 839 of the Criminal Code, R.S.C. 1985, c. C 46, the applicant must establish that:
a) the grounds of appeal raise an issue of law alone;
b) the issue is one of importance; and
c) there is sufficient merit to the appeal to warrant leave being granted.
So Balogh's lawyer made sure to clear the first hurdle by appealing only on law. The second was also easy because the main issue related to a significant delay caused by the unavailability of defense counsel, a legal issue that was both uncertain and important. The rules on undue delay in Canadian trials are very much in flux at the moment because of Jordan, a Supreme Court of Canada case. Jordan threw out all of the old rules and set up a new batch but with great uncertainty as to how they would be applied. Canadian courts have been grappling with Jordan implications ever since and Balogh's appeal became one of them. I have analyzed Jordan extensively in other postings in this discussion. For the purpose of this post it is sufficient to say that defense delay touched on an aspect of Jordan not yet fully considered in prior court decisions.
When I made my last post on this discussion on March 27, 2018 Balogh had been granted the right to appeal the delay decision. Finally, Two years later, the appeal has been heard and Balogh lost, so definitely a 'down' to add to the above list. This means his conviction for tax evasion stands. In my opinion this is the correct outcome, I thought the trial judge's decision to stay charges because of delay was clearly in error. The decision came down to the allocation of a seven month trial delay which had been caused entirely by Balogh. He'd represented himself initially using sovereign gibberish. When this got nowhere and with trial looming he finally decided to retain a lawyer. The specific lawyer he chose (who eventually represented him at trial and on appeal) wasn't currently available because he was fully engaged in other litigation so Balogh asked the court for an adjournment until the lawyer was free to represent him. The crown did not contest the adjournment request and it was granted. Balogh's counsel then argued at trial that the resulting seven month delay until he (the lawyer) was available was attributable to the crown rather than his client on the grounds that the crown hadn't contested Balogh's request for an adjournment. As I wrote at the time;
That didn't make any sense at all to me because, if it worked, every defence lawyer would be dragging his heals running out the clock then demanding that charges be stayed because of delay. If the court, aware of this, refused the adjournments it would leave defense a potential appeal on the grounds that they were not allowed the time to properly prepare their case.
In the recent decision the Court of Appeal agreed with my assessment. The decision stated, in part;
[35] The approach contended for by Mr. Balogh is, in my view, contrary to both the letter and the spirit of Jordan. It is contrary to the letter because Jordan applies to all cases in the system subject to the two transitional exceptional circumstances described above. It is contrary to the spirit of Jordan because the case calls on all participants in the justice system to work in concert to achieve speedier trials: para. 116. Each side is to be held accountable for the circumstances within their control. The defence is not to be allowed to benefit from its own delay causing conduct (Jordan at para. 60), and the Crown will not be held accountable for circumstances that cause the ceiling to be breached that are genuinely outside of its control: Jordan at para. 112.
[36] It is in this light that the busy trial calendar of Mr. Balogh’s counsel must be considered. Defence counsel, of course, cannot be faulted for not always being available when the court and the Crown are ready to set a date. But under Jordan, attribution of delay is not about blame—it is about creating “incentives for both sides … to enhance accountability by fostering proactive, preventative problem solving”: Jordan at para. 112. In the present case, neither the Crown nor the court before whom Mr. Balogh was tried had an ability to mitigate delay caused by Mr. Balogh’s choice of counsel or that counsel’s schedule.
[37] A judge’s task on a s. 11(b) application is to determine whether the state has failed to provide an accused with a trial within a reasonable time as guaranteed by the Charter. A stay of proceedings under s. 11(b) is a rebuke to state action, and the state should not be rebuked because defence counsel is unavailable: R. v. Pelletier, 2016 BCSC 2496.
[38] It is convenient to address here Mr. Balogh’s argument that the determining factor, even under the Jordan analysis, is the cause of the adjournment, with the party causing the adjournment to be responsible for all delay until a new date is set. In my view, the premise is unsound because it fails to distinguish between the cause of the adjournment and the cause of the delay, which will not always coincide. Although it was the unavailability of the judge which caused the adjournment of the third trial date, the state was prepared to set a date within a few months and should only be held responsible for the delay between the third trial date and October 2015, when the court and Crown were ready to proceed to trial but defence counsel was not. Thereafter it was only the unavailability of defence counsel that precluded the trial from proceeding.
[39] Mr. Balogh was entitled to retain the counsel of his choice, but he cannot use his counsel’s unavailability to argue that the state has breached his right to be tried within a reasonable time.
R. v. Balogh
2020 BCCA 96
http://canlii.ca/t/j5zj3
So, barring an appeal to the Supreme Court of Canada, that's that. Balogh's conviction stands and next up is his sentencing hearing where the court will determine sentence after a lot of mitigating and aggravating circumstances analysis. I'm assuming he won't get jail time, that would be unusual for a first offender without any (at the moment) significant aggravating circumstances but that's up to the judge. As I understand it he can't appeal his conviction since he's already done that however he can appeal his sentence. Both Lawson and Millar appealed their sentences but they both received significant jail time. Balogh may chose to just let it go if he receives a conditional sentence which would allow him to continue to practice dentistry while serving out his time.
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