CALGARY – A former Canmore accountant who is facing criminal charges of defrauding approximately 40 people with his Bow Valley-based business had his request to adjourn his trial denied.
James "Russ" Neilson filed his application last Friday (Jan. 3) to adjourn his Monday (Jan. 6) trial start date, claiming his election for a judge-only trial was done improperly and that he had ineffective counsel.
Neilson was originally charged in 2015 with three counts of fraud over $5,000, one charge of theft over $5,000 and one count of laundering the proceeds of crime, along with additional charges in 2016 of fraud over $5,000, uttering a forged document and another charge of laundering the proceeds of crime.
The former accountant was in front of a judge in December to request an adjournment, but the application was denied.
Court of Queen's Bench Justice Kristine Eidsvik was unmoved by his last minute application to delay the trial.
"You've known now for a long time this trial was scheduled today and you've tried to bring a pre-trial application ... but as far as pre-trial applications you were done – that's the dealio as far as I can see," Eidsvik said.
"You've made the election and you've got your judge, so let's go. Let's get it done.”
The charges stemmed from accusations between 2009-14 when Neilson was the owner and operator of Abaca Solutions, an accounting service based in Canmore.
The Crown's case to prove during trial is that Neilson took money from investors and laundered the proceeds.
Neilson, who was self-represented, did not get a chance to give an opening statement on the first day of his trial, as his potential adjournment discussion took up most of the court's time. As a result, the testimony from the first two witnesses for the Crown was delayed.
“Generally speaking, the Crown’s position is Mr. Neilson is angling to get this adjourned one way or another, the Crown doesn’t see this as a situation where the Crown loses jurisdiction … the case isn’t going to get dismissed,” said Crown prosecutor Steven Johnston.
Neilson said he took exception that the Crown was trying to suggest he was delaying his trial and asked if it was the appropriate time to be showing when and how he raised the questions regarding his election.
After reviewing the "hundred pages of documents" related to the case, Justice Eidsvik said there was no new information being presented and she could not change the decision of the pre-trial judge, who denied the adjournment last month.
“It is a pre-trial application that I, as a trial judge, cannot deal with,” Justice Eidsvik said.
She also noted how the case was “highly unusual” given the multiple pre-trial conferences, extensive invovement of case management, the two lawyers and adjourned several times since 2016.
“You’ve made the election, you’ve had excellent counsel … I’ve read hundreds of pages this morning and in any event [the application] doesn’t matter. The fact is, you’ve made an appropriate election with counsel and here we are,” Justice Eidsvik said.
Neilson said his written election could not be found in the paperwork and requested a jury trial, but Eidsvik said there were multiple hearings prior to the trial and it was too late.
“What happened between you and your counsel, I’m not going to deal with that,” Justice Eidsvik said.
She said Neilson could appeal on the grounds of his concerns if found convicted of his charges.
The Crown withdrew one charge, use of a forged document and went forward with the remaining seven charges including four counts of fraud over $5,000, two counts of proceeds of crime, and one count of theft over $5,000.
Neilson pleaded not guilty to all counts.
The trial is scheduled for 15 days.