A woman convicted in December for running a Yukon immigration fraud scheme has had all charges dropped due to long delays in her case.
On June 28, Richmond Provincial Court Judge Bonnie Craig ordered a stay of all proceedings against Tzu Chun Joyce Chang, who was convicted in December 2023.
Chang brought an application for a stay of proceedings alleging her right to be tried within a reasonable time under the Canadian Charter of Rights and Freedoms was violated.
Craig agreed, citing the main issue as the prosecution's failure to accurately estimate trial time.
Craig found Chang guilty in December 2023 of 11 charges stemming from an immigration scheme where her company, USA-Canada International Investment Inc. (UCII), submitted forged nomination certificates supporting 70 applicants who didn't qualify for the Yukon Business Nominee Program.
She redirected $2 million in investments from applicants to unrelated companies.
A Yukon government official, Ian David Young, passed away two weeks after charges were laid. A stay of proceedings was ordered for co-accused Qiong Joan Gu and Aillison Shaunt Liu, and UCII employee Shouzhi Stanley Guo was found not guilty last June.
The first charges were laid against Chang and her co-accused in 2020 and it took a total of 34 months and 29 days for the trial to be completed. Cases tried in provincial courts have a time limit of 18 months.
In her application, Chang argued that the delay was caused by Crown and the lack of institutional resources and the prosecution was "not particularly complex and cannot justify this delay."
The prosecution disagreed, arguing that the delay was largely caused by discreet exceptional events and defence delays. The case was also "particularly complex," argued the prosecution.
'Wholly unrealistic' to complete trial within 12 days, says judge
In her decision, Craig examined four main periods: the intake and pre-trial conferences, the setting of original trial dates, the continuation of the trial and the withdrawal of defence counsel until the final continuations.
The trial was originally scheduled to take place in July 2022 but faced multiple delays when addressing Charter rights applications, evidentiary issues and problems with coordinating timely continuation dates, among other factors.
Chang's lawyer withdrew from the case last summer and she ultimately decided to represent herself in the rest of the proceedings.
Craig deducted nine months and 27 days in delays caused solely by defence (including Chang and her co-accused), such as the lack of availability for earlier trial dates and the sudden withdrawal of Chang's lawyer, leaving a net delay of 25 months and two days.
Although the prosecution told the court it had estimated 12 days for the completion of its own arguments, Craig found the prosecution's estimate was for the entirety of the trial. The inaccurate trial time estimate was the most significant issue causing the delays, she found.
"I cannot understand how the Crown ever expected to complete the trial within the allotted time," she said in her oral reasons read out on June 28.
By the time an issue arose with the prosecution's evidence during the trial, there were only three scheduled days of trial time left, and the trial was "nowhere close to completing" said Craig.
"In fact, the trial took another 24 days to complete; 12 days to complete the Crown’s case, and a further 12 days for defence evidence, further issues, and closing submissions," she said.
She added that the defence couldn't be blamed for taking a disproportionate amount of the prosecution's time since the prosecution took longer examining their own witnesses and cross-examining Chang, the defence's only witness.
While the responsibility to act expeditiously didn't lie solely on the prosecution, and the prosecution did make efforts to streamline the process, Craig found it was "too little, too late."
The prosecution had 17 months before the commencement of the trial to recognize it was "wholly unrealistic" to expect the case to be completed within the allotted time, said Craig.
The accused faced 14 charges, interpreters were needed for the accused and witnesses, and the Crown relied on hundreds of documents and chose to conduct the case electronically, adding to "further foreseeable delays," she explained.
Case not complex enough to justify delays
In defence of the delay, the prosecution argued the case had many of the "hallmarks" to qualify as a "particularly complex" case.
The prosecution listed factors including the involvement of multiple co-accused, a large number of charges and significant issues in dispute, voluminous disclosure that was complicated and involved multiple individuals and difficulty coordinating calendars with defence counsel.
Chang disagreed, arguing the multiple accused didn't add "meaningfully" to the delay since the bulk of the evidence would have to be led against her anyway, the pre-trial applications were "modest and straightforward" and the legal issues were not novel nor uncharted.
Craig acknowledged the case was complicated, but found it didn't meet the high bar to justify the delays.
In particular, she acknowledged the voluminous disclosure, involving almost 20,000 files including documents, photos and audio and video recordings, was a significant factor that contributed to the complexity of the case, but the documents themselves were not complicated.
"Many potential issues" were identified during a pre-trial conference in 2021, and prosecution proposed to deal with the issues during the 12 days of trial rather than addressing them ahead of the trial, which was "expecting a lot in a complicated case," Craig explained.
She added more realistic scheduling only happened after a need for continuation arose in July 2022.
"The 12 days scheduled to complete a case involving four accused, an interpreter, multiple counts with multiple issues, and voluminous documentation was woefully inadequate," said Craig.
The failure to schedule adequate time had a "cascading effect" on the case, she concluded, adding that it led to "avoidable delays or delays that could have been minimized."
Although the prosecution did take steps to streamline the case and "repeatedly raised concerns about delay," it had failed to be proactive in addressing the need for court time in a timely manner, she said.
A stay of proceedings was directed for all charges against Chang.
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