COURT FILE NO.: CR-22-00000258-0000 DATE: 20230821

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Crown/Respondent

• and - MOHAMAD EL-ZAHAWI Applicant/Accused

Counsel: A. Schultz, for the Crown/Respondent J. Wilkinson, for the Applicant/Accused

HEARD: October 24, November 17 & 29, and December 7, 2022.

GARTON J.

REASONS ON APPLICATION FOR DISCLOSURE, RE-OPENING OF GAROFOLI APPLICATION, STAY OF PROCEEDINGS UNDER S. 24(1) AND AN ORDER EXCLUDING EVIDENCE UNDER SECTIONS 24(1) AND/OR (2) OF THE CHARTER

[1] The applicant, Mohamad El-Zahawi, was arrested and charged on June 3, 2020, with the following offences: conspiracy to traffic a firearm, offering to transfer a firearm, conspiracy to traffic ammunition, offering to transfer ammunition, possession of a loaded restricted firearm, possession of a restricted firearm, and four counts of breaching a firearm prohibition order. The dates of the alleged offences are from March 2, 2020 to March 5, 2020.

[2] Mr. El-Zahawi and his co-accused were targets of Project Platinum – a multi-jurisdictional investigation into the tow truck industry, led by the York Regional Police from late 2019 to the spring of 2020. The theory of Project Platinum was that tow truck companies were engaged in a territorial war across the Greater Toronto Area, and that rival companies were resorting to violence to maintain their territory and scare off rivals. The reason for this conflict was rarely about the tow itself, but rather about the lucrative and secondary profit derived from fraud, both of the individual driver and the insurance company.

[3] The Crown’s case relies largely on intercepted communications captured pursuant to a Criminal Code (“the Code”) Part VI authorization (the “Platinum Part VI”). The authorization was granted on February 28, 2020 by Justice Dawe of the Superior Court of Justice in Newmarket. The affiant of the information to obtain the authorization (“the ITO”) was Detective Ryan Lidstone.

[4] The Platinum Part VI spawned many prosecutions, including R. v. Askari et al. (the “Askari Group”) and R. v. Vinogradsky et al. (the “Vinogradsky Group”).

[5] Mr. El-Zahawi, along with his co-accused, Afram Khamo and Barrington Grant, elected to be tried by a judge in the Ontario Court of Justice (“OCJ”). Mr. El-Zahawi’s lawyer at that time was Gerald Yasskin. The remaining groups of accused persons charged in Project Platinum elected to have their respective trials in the Superior Court of Justice (“SCJ”).

[6] The trial of Mr. El-Zahawi and his co-accused commenced in the OCJ in Newmarket in August 2021 before Justice Prutschi, who was also the case management judge. The accused brought an application to exclude their intercepted communications. They argued that the Platinum Part VI was improperly issued and resulted in a violation of their s.8 Charter rights. The Crown brought an application to have the court consider the redacted portions of the ITO in accordance with the “Step 6” procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421, in order to support the issuance of the authorization.

[7] Through his counsel, Mr. El-Zahawi agreed to be bound by a case management order that Mr. Khamo’s lawyer, Mr. Fedorowicz, would conduct the Garofoli application on behalf of all the accused.

[8] The application began with the preparation of judicial summaries of the redacted material in the ITO and source documents, which entailed exchanges between Crown counsel and Justice Prutschi. After a number of exchanges, Justice Prutschi delivered the summaries to defence counsel. Although he gave counsel the opportunity to make further submissions regarding the summaries, he made it clear that the summaries, as delivered, contained all the information that could be disclosed without compromising informant privilege. He also made it clear that he could not provide any information as to which of the targets were the subjects of the redacted portions of the ITO.

[9] The accused then sought and were granted leave to cross-examine the affiant, Det. Lidstone. The areas in which they sought leave and the areas in which leave was granted are set out in the applicant’s factum at paras. 29 and 30. One area in which leave was granted, albeit on a limited basis, was the affiant’s treatment of statements made by Thomas Sliwinski. Mr. Sliwinski provided two separate statements to the police. He made the first statement on September 11, 2019, following his arrest for the attempted murder of an insurance lawyer. The second statement was made a week later on September 17, 2019 while he remained in custody.

[10] Prior to the commencement of cross-examination of the affiant, Mr. El-Zahawi discharged Mr. Yasskin and retained Mr. Wilkinson to act as his counsel. Mr. Wilkinson was available to be present during the cross-examination of the affiant but not available during the time set aside for the trial proper. Consequently, he asked that Mr. El-Zahawi be severed from the co-accused or that an adjournment be granted.

[11] Crown counsel and Mr. Wilkinson ultimately came to an agreement. Mr. El-Zahawi agreed to be bound by Justice Prutschi’s Garofoli ruling and to waive any s.11(b) Charter delay resulting from the adjournment of the trial proper. In turn, the Crown agreed to sever Mr. El-Zahawi from his co-accused. This meant that the Crown would have to call the same evidence at two different trials.

[12] The Garofoli application then continued with the cross-examination of Det. Lidstone. Pursuant to the earlier case management order, which was made when Mr. El-Zahawi was represented by Mr. Yasskin, only Mr. Fedorowicz was permitted to cross-examine the affiant. However, following the cross-examination, both Mr. Fedorowicz and Mr. Wilkinson made submissions regarding the adequacy of the judicial summaries. Both counsel argued vigorously that the summaries were not adequate and that additional disclosure was required before the Crown could rely on the redacted material.

[13] At no point during the Garofoli application did either the Crown or Justice Prutschi signal in any way, either during discussions regarding the adequacy of the judicial summaries or the Step 6 application, that the redacted materials contained highly relevant information that ought to be disclosed to the defence, but which could not be disclosed due to informant privilege, thereby requiring a stay of the charges in order to protect the privilege.

[14] On September 2, 2021, Justice Prutschi dismissed the Garofoli application. He found that the summaries were adequate for Step 6 purposes and that the redacted material could be considered in determining whether there was a breach of the accused’s s.8 Charter rights. After finding that there was no s.8 breach and that the authorization was valid, he held that the intercepted communications and derivative evidence obtained pursuant to it were admissible at the relevant trials.

[15] The trial of Mr. Khamo and Mr. Grant then proceeded on the scheduled date. On November 15, 2021, both accused were found guilty of the charges against them. I am advised by counsel that on February 28, 2022, Mr. Khamo was sentenced to a term of imprisonment of three years and that he has appealed both his conviction and sentence.

[16] Mr. El-Zahawi’s matter continued to be case-managed by Justice Prutschi. During that process, Mr. El-Zahawi sought additional disclosure with respect to the manner in which the Platinum Part VI had been executed. He sought this disclosure on the good faith basis that his presumptively privileged solicitor-client communications had been intercepted and accessed pursuant to the authorization. Justice Dawe had made a supervisory disclosure order to protect the privacy of certain other co-accused who were charged as a result of Project Platinum. These factors led Mr. Wilkinson to request the Crown’s consent to have Mr. El-Zahawi re-elect to have a judge-alone trial in the SCJ, which had supervisory jurisdiction over the execution issues. In exchange for the Crown’s consent, Mr. El-Zahawi agreed to be bound by Justice Prutschi’s decision on the Garofoli application and to waive any delay resulting from the re-election. The re-election to a Superior Court judge-alone trial took place before Justice Prutschi on March 18, 2022.

[17] While preparing the indictment for the SCJ in Newmarket, Crown counsel realized that the entire transaction alleged to constitute the offences took place in Toronto. Accordingly, and with Mr. El-Zahawi’s agreement, the indictment and prosecution were moved to Toronto. The first judicial pre-trial took place on May 28, 2022.

[18] Ten days earlier, on May 18, 2022, the prosecution of the Askari Group ended abruptly when Justice Bird, sitting in the SCJ in Newmarket, stayed all of the charges against those accused at the request of the Crown. This was the result of a vetting issue that arose during their Garofoli application. As explained in greater detail below, the Crown in Askari recognized that certain material or information brought to their attention by Justice Bird should be disclosed to the defence, pursuant to R. v. Stinchcombe, [1991] 3 S.C.R. 326. However, it could not be disclosed without compromising informant privilege. Consequently, Crown counsel asked that all the charges against the accused in Askari be stayed.

[19] Based on the Askari proceedings, Mr. El-Zahawi has applied for the following remedies:

i) An order for disclosure of all additional material of relevance that was provided to the Askari group prior to and during their Garofoli application, including the revised redacted ITO, source documents, and judicial summaries; and

ii) An order allowing Mr. El-Zahawi to re-open the Garofoli motion decided by Justice Prutschi based on the sealed materials from the Askari case that are now before me and marked as Exhibit F; the additional disclosure requested in i) above; and the additional information and cross-examination of the affiant, Detective Lidstone, from the proceedings before Justice Bird.

The Askari Group’s Garofoli Application

[20] The same Crowns in the Guns and Gangs Unit prosecuting Mr. El-Zahawi on the firearm charges also prosecuted the Askari Group. The charges against the Askari Group sprang from the same Platinum Part VI authorization and depended heavily on the intercepted communications resulting from it. The Askari trial commenced in May 2022. This was well after Justice Prutschi’s dismissal of Mr. El-Zahawi’s Garofoli application on September 2, 2021, but prior to his first judicial pre-trial in the Toronto SCJ.

[21] As stated, the Garofoli application brought by the Askari Group challenged the validity of the Platinum Part VI and led to a stay of all the charges against them. It also resulted in the Crown staying the charges against all the accused in the Vinogradsky Group, as well as an attempt murder charge and related offences against Mr. El-Zahawi in Newmarket.

[22] During their Garofoli application, the Askari Group brought a motion under Step 2 for disclosure of additional material from the redacted portions of the authorization, the ITO, and source documents.

[23] The Askari Group proposed 24 areas of cross-examination. They argued that the amplified record demonstrated that the affiant misstated evidence relating to the accused. For example, they adduced evidence that the affiant misrepresented and exaggerated the criminal records of Mr. Askari and another accused, Salloum Jassem. They also adduced evidence that the affiant mischaracterized another accused, Marena Leachman, as a perpetrator of domestic violence when she was, in fact, the victim. They argued that the affiant’s misrepresentations and conduct provided a basis to set aside the Platinum Part VI in its entirety.

[24] Based on the proceedings before Justice Prutschi and the amplified record, the Crown in Askari conceded several areas of proposed cross-examination, including the affiant’s failure to reference the second statement made by Thomas Sliwinski. The applicants abandoned three areas of proposed cross-examination.

[25] In a ruling on May 16, 2022, Justice Bird granted the Askari Group leave to cross-examine the affiant on 18 of the 21 proposed areas. In allowing them to cross-examine him widely with respect to all the concerns relating to Mr. Sliwinski’s first statement, Justice Bird stated as follows:

… During his second statement, Mr. Sliwinski recanted portions of his first statement and said that he remembered very little about what he said because he was high on drugs at the time. The Crown concedes the affiant ought to be cross-examined on his almost complete failure to make reference to the second statement. The Crown resists cross-examination of the affiant on Mr.Sliwinski’s first statement on the basis that the affiant fully and fairly summarized it. I disagree. There were a remarkable number of extraordinary claims and demonstrable inaccuracies in Mr. Sliwinski’s first statement. He was clearly under the influence of a substance and/or suffering from acute mental health issues.

Leaving aside entirely the recantations in the second statement, there were significant and obvious difficulties with Mr. Sliwinski’s credibility and reliability during his first interview that were not brought to the attention of the issuing justice. The affiant may be cross-examined widely on all of the concerns that were apparent in Mr. Sliwinski’s first interview and not brought to the attention of the issuing justice.

[26] Cross-examination of the affiant commenced on May 16, 2022, during which the applicants began to demonstrate a pattern of the affiant misrepresenting or omitting evidence that did not match the core narrative of the investigation, and a pattern of failing to disclose serious credibility issues with witnesses upon which the ITO was reliant.

[27] At the outset of court proceedings on May 17, 2022, Justice Bird advised the parties that as she was reviewing her notes from the previous day, she became concerned about a “vetting issue.” In a confidential e-mail to Crown counsel, Ms. Larmondin, Justice Bird identified the material or information that she felt ought to be disclosed to the defence as part of the Step 2 process and asked for the Crown’s position, which the Crown provided to her by confidential e-mail later that night and after court had adjourned for the day. In the meantime, the cross-examination of the affiant continued. However, the cross-examination regarding Mr. Sliwinski’s statements did not commence as the parties were canvassing options as to how to deal with an unexpected conflict of interest that had arisen.

[28] On the morning of May 18, 2022, Ms. Larmondin addressed the vetting issue raised by Justice Bird. She advised Justice Bird that the Crown was not in a position to remove any further redactions or provide any further information that would allow the Court to provide a judicial summary, as doing so would compromise the confidential source. The Crown was therefore unable to comply with its disclosure obligations pursuant to Stinchcombe, leaving the Crown open to Charter consequences. In other words, the Crown acknowledged that the material or information in issue was relevant to the Garofoli application and that failure to disclose it would affect the accused’s right to make full answer and defence in regard to a s.8 Charter breach. In these circumstances, Ms. Larmondin requested that the Court direct a stay of the proceedings.

[29] With the consent of the Crown, Justice Bird invited defence counsel to apply for a stay of proceedings under s. 24(1) and s. 7 of the Charter based on the Crown’s inability to comply with its disclosure obligations. Justice Bird underpinned the basis of the suggested application by describing the non-disclosed material as “significant,” and stated that non-disclosure of it “would impact on the fair trial rights of the applicants and their ability to pursue their s.8 application.” The Crown agreed with this characterization of the material in issue.

[30] Justice Bird inquired as to why the Crown was not directing a stay of the proceedings under s. 579 of the Criminal Code, or disavowing reliance on the intercepted communications. Crown counsel stated that absent those communications, there was insufficient evidence to continue the prosecution. The defence then applied for a stay under s.24(1) and s.7 of the Charter. The Provincial Crowns from the Guns and Gangs Unit and the Federal Crown agreed that the appropriate remedy was a stay.

[31] In ordering the stay, Justice Bird found this was “one of the clearest of cases” and it was the only remedy available and appropriate in the circumstances.

The Vinogradsky Group

[32] As stated earlier, the Platinum Part VI led to the prosecution of another group of accused – the Vinogradsky Group. The trial of those accused was scheduled to commence in June 2022 in the Newmarket SCJ. The pre-trial motions included a Garofoli application to exclude the Platinum Part VI intercepted communications. However, that application was never heard as the Crown stayed the charges, ostensibly as a result of the outcome of the Garofoli disclosure issue in Askari.

Mr. El-Zahawi’s Charges of Attempt Murder and Related Offences

[33] In addition to the firearm offences, Mr. El-Zahawi was also charged with attempt murder and related charges in Newmarket, along with a co-accused. Prior to the preliminary inquiry, which was set to commence in July 2022, the charges against Mr. El-Zahawi were stayed at the request of the Crown. Crown counsel in the present case, Mr. Schultz, was not the prosecutor in that case. However, he has advised that the case against Mr. El-Zahawi on the attempt murder charge was completely reliant on the intercepted communications flowing from the Platinum Part VI and that the charges were stayed for the same reason that the charges against the Askari Group and Vinogradsky Group were stayed – that is, as a result of the disclosure issue and the resulting stay granted by Justice Bird in Askari.

[34] The Crown’s decision to stay the charges against the Vinogradsky Group and the charges against Mr. El-Zahawi in Newmarket indicates that the undisclosed material that was the subject of the “vetting issue” in Askari is relevant to the overall validity of the authorization, as opposed to some target-specific deficiency. Mr. Schultz acknowledges that the undisclosed material would be relevant to Mr. El-Zahawi’s Garofoli application if an order to re-open that application were granted. However, he takes the position that an order to re-open ought not to be made, given Mr. El-Zahawi’s undertakings to be bound by Justice Prutschi’s decision.

Exhibit “F”

[35] The confidential e-mail correspondence between Justice Bird and Ms. Larmondin in Askari, which identified the material that was relevant to the Garofoli application, but which could not be disclosed due to informant privilege, was ordered sealed by Justice Bird. Pursuant to an application for production, that material was before me during this application and has been marked as Exhibit F. It has remained sealed.

The Position of the Parties on this Application

Position of the Crown

[36] The Crown opposes the re-opening of the Garofoli application. Mr. Schultz acknowledges that if the application were re-opened, the material contained in Exhibit F would be relevant. However, he takes the position that an order to re-open ought not to be granted, given Mr. El-Zahawi’s undertakings to be bound by Justice Prutschi’s decision.

[37] Mr. El-Zahawi gave that undertaking on two occasions. First, to secure the Crown’s consent to sever him from his co-accused so that Mr. Wilkinson, who was his counsel of choice, could represent him. Second, to secure the Crown’s consent to his re-election to have his trial in the SCJ. Mr. Schultz submits that Mr. El-Zahawi’s undertakings – the quid pro quo for the Crown’s consent in each of these instances – were tactical or strategic decisions that Mr. El-Zahawi, in hindsight, or as a result of “second thoughts,” now seeks to reverse. Mr. Schulz submits that given the tactical or strategic nature of his decisions, Mr. El-Zahawi ought not to be released from his undertakings. As Exhibit F is only relevant with respect to the Garofoli application and not to the trial proper, and since Mr. El-Zahawi is bound by his undertaking to be bound by Justice Prutschi’s ruling, the application to re-open the Garofoli application should be dismissed.

[38] Mr. Schultz relies on Justice McWatt’s decision in R. v. Lapps, 2018 ONSC 5728, [2018] O.J. No. 5213, and the Alberta Court of Appeal’s decision in R. v. Eliasson, 2020 ABCA 446, 398 C.C.C. (3d) 393, in support of his position that Mr. El-Zahawi’s undertakings constituted tactical or strategic decisions by which he should remain bound.

[39] Mr. Schultz acknowledges that a trial judge, in some circumstances, has the discretion to re-open a voir dire, but submits that the forum for such an application in this case would be the OCJ before Justice Prutschi. However, he argues that Justice Prutschi is now functus due to Mr. El-Zahawi’s re-election to have his trial in the SCJ. Mr. Schultz also noted Justice Prutschi’s dismissal of the Garofoli application had a “level of finality” as the intercepted communications flowing from the Platinum Part VI were admitted into evidence and led to the convictions of Mr. Khamo and Mr. Grant. Mr. Schultz argues that in these circumstances, Justice Prutschi’s decision can only be overturned on appeal. He submits that there is no legal authority for a judge of the SCJ, not sitting as an appellate court, to permit the re-opening or review of Justice Prutschi’s decision.

[40] Essentially, Mr. Schultz argues that Mr. El-Zahawi is forever bound by his undertaking to be bound by Justice Prutschi’s ruling unless or until that ruling is set aside on appeal. He disagrees with the position of the defence that the SCJ, as Mr. El-Zahawi’s trial court, has the jurisdiction to allow the re-opening of the application. Mr. Schultz submits that the decision in R. v. R.V., 2018 ONCA 547, 141 O.R. (3d) 696, at paras. 92 – 108; rev’d R. v. RV, 2019 SCC 41, 436 D.L.R. (4th) 265, upon which the defence relies, is not applicable in this case. As a note, while the Supreme Court of Canada reversed the Court of Appeal’s decision, the reversal related to the outcome of the case. The Court of Appeal’s outline of the law or general rule at paras. 98 – 103 was affirmed by the Supreme Court of Canada at paras. 74 and 75.

[41] Finally, Mr. Schultz submits that the fact that Exhibit F did not come to light during the Garofoli application before Justice Prutschi was the result of a lack of due diligence by Mr. El-Zahawi. For example, there was nothing preventing counsel for Mr. El-Zahawi, prior to making arguments before Justice Prutschi, from requesting assistance from or consulting with counsel in the Askari Group, who had elected to be tried in the SCJ. As Mr. El-Zahawi has failed to meet the due diligence test set out in R. v. Palmer, [1980] 1 S.C.R. 759 for the admission of fresh evidence, his application to re-open his Garofoli application should be dismissed.

Position of the Applicant

[42] Mr. Wilkinson submits that Mr. El-Zahawi’s agreement/undertaking to be bound by Justice Prutschi’s Garofoli ruling in return for the Crown’s consent to the severance of his trial from that of his co-accused and to his re-election from a trial before an OCJ judge to a SCJ judge alone cannot be considered as “strategic or tactical” decisions. Mr. El-Zahawi’s undertaking/agreement was only intended to address any potential jurisdictional gaps that may have resulted from the severance or re-election.

[43] Mr. Wilkinson submits that given the Crown’s acknowledgement that Exhibit F contains relevant evidence with respect to Mr. El-Zahawi’s Garofoli application, the Crown has an obligation to disclose it.

[44] Mr. Wilkinson relies on the decisions in R. v. Trotta, 119 C.R.R. (2d) 334 (C.A.), R v. McNeil 2009 SCC 3, [2009] 1. S.C.R. 66, and Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, in support of his position that the Crown’s disclosure obligations continue post-conviction and, a fortiori, continue post-Garofoli ruling. Given the relevance of the information contained in Exhibit F, the Crown should be ordered to disclose it, in which case the Crown can choose whether or not to comply with the order and can suggest remedies for non-compliance.

[45] Mr. Wilkinson submits that the Crown’s argument that Mr. El-Zahawi is forever bound by his undertaking and Justice Prutschi’s decision on the Garofoli application unless or until that decision is set aside on appeal should be rejected. Mr. El-Zahawi accepts that he is jurisdictionally bound by Justice Prutschi’s decision. However, Mr. Wilkinson submits that Justice Prutschi’s ruling must be revisited in light of fresh evidence – namely, Exhibit F. Mr. El-Zahawi has not been convicted and is still before his trial court which, as a court of inherent and supervisory jurisdiction, has the discretion to allow the re-opening of the application. In this regard, Mr. Wilkinson relies on the Court of Appeal’s decision in R.V., as affirmed by the Supreme Court of Canada at paras. 74 and 75.

[46] Mr. Wilkinson submits that pursuant to R.V., a Charter determination or other evidentiary ruling by either the case management judge or the trial judge can always be re-opened prior to conviction, subject to a showing of material non-disclosure, a material change in circumstance, fresh evidence, or that it is in the interests of justice to do so.

[47] Mr. Wilkinson further submits that even if R.V. is not applicable in this case, Mr. El-Zahawi has met the modified Palmer test regarding due diligence set out in Trotta. He submits that Exhibit F could not have been obtained through due diligence, and that it only came to light through serendipity. He noted that counsel for the accused in the Askari group knew nothing about Exhibit F, which Justice Bird discovered on her own after viewing the sealed materials.

The Issues

[48] The issues raised on this application are as follows:

1. Is the material contained in Exhibit F from the Askari proceeding relevant to Mr. El-Zahawi’s Garofoli application to exclude the intercepted communications pursuant to the Platinum Part VI?

2. If the information contained in Exhibit F is relevant to Mr. El-Zahawi’s Garofoli application, does the Crown have an obligation to disclose the information?

3. If the material in Exhibit F is relevant and disclosable, should the application to re-open the Garofoli application be allowed pursuant to R.V.? This issue necessitates a determination as to: a. whether a judge of the Superior Court of Justice has jurisdiction to re-open the application; and b. the nature and purpose of the undertakings given by Mr. El-Zahawi to be bound by Justice Prutschi’s Garofoli ruling – that is, whether the undertakings were given by the defence to address potential jurisdictional gaps that may have resulted from the severance order and Mr. El-Zahawi’s re-election to have his trial in the SCJ, or whether, as asserted by the Crown, the undertakings were given as the quid pro quo for the Crown’s consent to the severance order and re-election and that Mr. El-Zahawi should be bound by them in perpetuity.

4. If the decision to re-open the Garofoli application is not governed by the decision in R.V., has the applicant met the modified Palmer test set out in Trotta?

Analysis

Issue #1: Is the material from the Askari proceeding that is contained in Exhibit F relevant to Mr. El-Zahawi’s Garofoli application to exclude the intercepted communications pursuant to the Platinum Part VI?

[49] There is no dispute that the material contained in Exhibit F is relevant to Mr. El-Zahawi’s Garofoli application. Crown counsel conceded the relevance of the material during his submissions.

[50] In Stinchcombe, the Court held that the Crown has an obligation to disclose all relevant material in its possession unless the material is privileged. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown.

[51] The threshold requirement for disclosure is set quite low. In R. v. McQuaid, [1998] 1 S.C.R. 244, at paras. 21 – 22, Justice Cory summarized the requirement as follows:

Thus, where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure.

[52] In the context of Step 2 or Step 6 in a Garofoli application, the general rule is that the applicant/accused is entitled to everything that the issuing justice received, subject only to privilege. Editing should be kept to a minimum. The need for editing should not be presumed. Disclosure of the entire ITO and supporting documents should be the starting point: R. v. Durette, [1994] 1 S.C.R. 469, at paras. 38 and 43 – 45.

[53] The material in Exhibit F relates to information vetted by Justice Bird and which she concluded had to be disclosed as part of the combined Step 2/Step 6 Garofoli procedure as it was relevant to the Askari Group’s Garofoli application. The Crown in Askari conceded that Exhibit F was relevant to the Garofoli attack on the Platinum Part VI, and that non-disclosure of it compromised the Askari Group’s right to make full answer and defence in the context of the Garofoli application. As the Crown could not disclose the contents of Exhibit F without compromising the confidential source, the Crown invited the defence to bring a s. 24(1) application for a stay of proceedings.

[54] Justice Bird described the non-disclosed material as “significant” and that failure to disclose it would impact the fair trial rights of the Askari Group and their ability to pursue their s. 8 application.

[55] In summary, a Superior Court judge has ruled that the information contained in Exhibit F is relevant to the Garofoli attack on the Platinum Part VI and the Crown has conceded its relevance to Mr. El-Zahawi’s Garofoli application.

Issue #2: Given the relevance of the information contained in Exhibit F, does the Crown have an obligation to disclose the information?

[56] Although Crown counsel concedes that the materials in Exhibit F are relevant in the Stinchcombe sense to Mr. El-Zahawi’s already-decided Garofoli application, he submits that Mr. El-Zahawi should not be entitled to re-open the application given his undertaking on two occasions to be bound by Justice Prutschi’s ruling. First, to secure the Crown’s consent to sever him from his co-accused in order to facilitate his representation by Mr. Wilkinson. Second, to secure the Crown’s consent to re-elect to have his trial in the SCJ, which had supervisory jurisdiction over the motions the defence was intending to bring regarding the manner in which the Platinum Part VI had been executed. I have addressed this aspect of the Crown’s argument when considering Issue #3, that is, whether the application to re-open the Garofoli application should be allowed.

[57] Setting aside for the moment the issue as to whether Mr. El-Zahawi is bound forever by his undertakings to be bound by Justice Prutschi’s Garofoli decision and the question as to whether this court has inherent jurisdiction to re-open the application, the obligation of the Crown to disclose the information contained in Exhibit F has been established.

[58] Given the Crown’s acknowledgement that the material in Exhibit F is relevant to the Garofoli application, the Crown has an obligation to disclose it, absent a confidential informant privilege. As stated in R. v. Dixon, [1998] S.C.R. No. 17, at para. 33, where a court is persuaded that undisclosed information meets the Stinchcombe threshold, an accused has met his burden to establish a violation of his Charter right to disclosure. The appropriate remedy for such a violation at trial is an order for production.

[59] The Crown’s disclosure obligations continue post-conviction and through the appellate process: see Trotta; McNeil; and Krieger v. Law Society of Alberta. It follows that those obligations also continue post-Garofoli ruling, which takes place in the pre-verdict phase of the criminal trial process. As observed by Doherty J.A. in Trotta, at para. 21, the heavy disclosure obligation placed on the Crown in the pre-verdict phase is necessary in order to give full vitality to an accused’s right to make full answer and defence as protected under s. 7 of the Charter. Full, generous and timely disclosure protects against wrongful convictions. At para. 22, Doherty J.A. continued:

I see no reason why the Crown’s disclosure obligation should not continue through the appellate process. The protection of the innocent is as important on appeal as it is prior to conviction.

[60] Once information or materials are found to be relevant to the validity of the same authorization in any related proceeding, and the Crown agrees that they are relevant, disclosure should be the starting point for any other applicants who are challenging the same authorization: Durette, at para. 51. Given Justice Bird’s finding in Askari that the information contained in Exhibit F is relevant to the validity of the Platinum Part VI, and the Crown agrees that it is relevant in the Stinchcombe sense, the Crown should be ordered to disclose it, in which case the Crown can choose whether or not to comply with the order and can suggest remedies for non-compliance.

Issue #3: If the material in Exhibit F is relevant and disclosable, should the application to re-open the Garofoli application be allowed pursuant to R.V.?

Sub-issue (a): As a judge of the Superior Court of Justice, do I have jurisdiction to re-open the Garofoli application? On the Strength of the Legislation and Common Law (R.V.), should the application to re-open the Garofoli be allowed?

1. The Legislation: Relevant Criminal Code Provisions

[61] Justice Prutschi made his Garofoli ruling while acting as a case management judge under ss. 551.1(1) and 551.3(1)(g) of the Criminal Code, which state as follows:

Case Management Judge

551.1(1) Appointment – On application by the prosecutor or the accused or on his or her own motion, the Chief Justice or the Chief Justice of the court before which a trial is to be or is being held or the judge that the Chief Justice or the Chief Judge designates may, if he or she is of the opinion that it is necessary for the proper administration of justice, appoint a judge as the case management judge for that trial at any time before the jury selection, if the trial is before a judge and jury, or before the stage at which the evidence on the merits is presented, if the trial is being heard by a judge without a jury or a provincial court judge.

551.3(1) Powers before evidence on merits presented – In performing their duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial, including by

(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to

(i) the disclosure of evidence,

(ii) the admissibility of evidence,

(iii) the Canadian Charter of Rights and Freedoms,

(iv) expert witnesses,

(v) the severance of counts, and

(vi) the separation of trials on one or more counts when there is more than one accused; and [Emphasis added.]

[62] Section 551.3(4) stipulates that had Mr. El-Zahawi severed his trial from the co-accused but remained in the OCJ, Justice Prutschi’s ruling would have been binding on him:

551.3(4) Decision binding – A decision that results from the exercise of the power referred to in paragraph (1)(g) is binding on the parties for the remainder of the trial – even if the judge who hears the evidence on the merits is not the same as the case management judge – unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced. [Emphasis added.]

591(3) Severance of accused and counts – The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts; and

(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.

591(4.2) – Decisions binding on parties – Unless the court is satisfied that it would not be in the interests of justice, the decisions relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that are made before any order issued under subsection (3) takes effect continue to bind the parties if the decisions are made – or could have been made – before the stage at which the evidence on the merits is presented. [Emphasis added.]

[63] Given s. 551.3(4), it appears that the undertakings given by Mr. Wilkinson on behalf of Mr. El-Zahawi to be bound by Justice Prutschi’s ruling when the severance and re-election orders were made were not necessary. Pursuant to that section, Mr. El-Zahawi was bound by the rulings in any event, unless the court found that it would not be in the interests of justice because, among other considerations, fresh evidence was adduced.

[64] Crown counsel submits that Mr. El-Zahawi’s undertakings were binding forever as they constituted the quid pro quo for the Crown’s consent to the severance order and the order permitting his re-election from the OCJ to the SCJ.

[65] Before addressing the effect or ramifications of Mr. El-Zahawi’s undertakings, I will first consider the test set out in R.V., that is, whether there has been a showing of material non-disclosure, a change in circumstance, fresh evidence, or whether it is in the interests of justice to re-open the Garofoli application.

2. Has the “R.V./ss. 551.3(4) and 591(4.2)” Test been Met?

[66] The power of a trial judge to reconsider earlier rulings made within the trial that they are presiding over is clear. Those principles were set out in R. v. Farrah, 2011 MBCA 49, 268 Man. R. (2d) 112, at paras. 22 – 23, and relied on by Paciocco J.A. in R.V., which was later affirmed by the Supreme Court of Canada. These cases hold that the principles of res judicata do not apply during a hearing to decisions reached by a judge during that hearing, and that a judge is not functus officio when a voir dire has ended. As Justice Sopinka affirmed in R. v. Adams, [1995] 4 S.C.R. 707, at para. 29, judges who are not functus officio have jurisdiction to reconsider and vary the orders that are made within a trial, in the interests of justice. At para. 30, he stated:

As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place.

[67] In R.V., Justice Paciocco observed that the most common circumstance where it may be in the interests of justice to reconsider rulings is where facts have materially changed. However, this is not the only circumstance. Rulings have also been re-opened where a party has misunderstood the scope of an admission or because counsel was unaware of relevant evidence at the time: paras.102 and 103.

[68] In the present case, Mr. El-Zahawi and his counsel were unaware of the information contained in Exhibit F during the Garofoli hearing and thus have demonstrated material non-disclosure or a change in circumstances.

[69] Mr. Wilkinson submits that given Mr. El-Zahawi has not been convicted and that he is before his trial court, which is a court of inherent and supervisory jurisdiction, this court has jurisdiction to allow Mr. El-Zahawi to re-open his Garofoli application. Mr. Wilkinson relies on the decision in R.V. in support of this position.

[70] In R.V., the accused was charged with sexual assault and sexual interference. During pre-trial proceedings, he applied under s. 276 of the Code for permission to cross-examine the complainant about her prior sexual activity. The application judge dismissed the application. After the voir dire and prior to trial, the application judge invoked s. 669.2 of the Code and the trial continued before another judge. At the outset of the trial, the trial judge declined the accused’s request to re-litigate the s.276 application, in part, on the basis that he was bound by the initial s.276 ruling. The Court of Appeal found that he erred in this regard. That finding was confirmed by the Supreme Court where, at paras. 74 and 75, the Court stated:

Second, as a general rule, an order related to the conduct of trial may be varied or revoked if there is a material change of circumstances: C.A. reasons, at paras. 98-103. As evidence emerges at trial, both the probative value and potential prejudice of proposed evidence may change. If a material change of circumstances occurs, either party may request that a previous evidentiary ruling be re-visited. [Citations omitted].

In this case, the application judge refused R.V.’s request to question the complainant on her sexual history. At the outset of the trial, the trial judge subsequently held that because the trial had been continued before him under s. 669.2 of the Criminal Code, the pre-trial motions could not be re-litigated and he was bound by the application judge’s s. 276 ruling. But as the Court of Appeal correctly stated, s. 669.2 does not displace the general rule that a trial judge has discretion to re-consider rulings made earlier in the proceedings if there is a material change of circumstances: paras. 98-108.

[71] R.V. is distinguishable from the present case as both the application judge and the trial judge in R.V. were OCJ judges. If Mr. El-Zahawi’s case had remained in the OCJ, there would be no jurisdictional issue and Justice Prutschi’s ruling would be binding on the trial judge “unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced”: s. 551.3(4) of the Code.

[72] Mr. Schultz acknowledges that a trial judge, in some circumstances, has the discretion to re-open a voir dire. However, he submits that the forum for such an application in this case is the OCJ before Justice Prutschi. He argues that given Mr. El-Zahawi’s re-election to the SCJ, Justice Prutschi is now functus, and his decision can only be overturned on appeal. He noted that there was a “level of finality” to Justice Prutschi’s decision given it resulted in the admission of the intercepted communications flowing from the Platinum Part VI, which led to the convictions of Mr. Khamo and Mr. Grant. Essentially, Mr. Schultz argues that Mr. El-Zahawi is bound forever by his undertaking to be bound by Justice Prutschi’s ruling unless that ruling is set aside on appeal. He takes the position that there is no legal authority for a judge of this court, not sitting as an appellate court, to permit the re-opening or review of Justice Prutschi’s decision.

[73] The difficulty with the Crown’s position is that it overlooks the fact that although Justice Prutschi’s ruling had a level of finality to it vis-à-vis Mr. Khamo and Mr. Grant, who were ultimately convicted, Mr. El-Zahawi has not been convicted and is now before his trial court – a court of inherent and supervisory jurisdiction. As the SCJ trial judge in this case, I have inherent jurisdiction to determine whether, pursuant to s.553.3(4), Justice Prutschi’s ruling is binding on Mr. El-Zahawi or whether, in light of the fresh evidence (Exhibit F), the application should be re-opened.

[74] In finding that I have inherent jurisdiction as a judge of the Superior Court of Justice, I rely on the definition of inherent jurisdiction as discussed in H. Jacob’s 1970 article, “The Inherent Jurisdiction of the Court”, 23 Current Leg Probs 23. When providing a definition of inherent jurisdiction, the Supreme Court of Canada often turns to this article, which the Court has cited on at least ten separate occasions: see, Assn. of Parents for Fairness in Education, Grand Falls District 50 Branch v. Société des Acadiens du Nouveau-Brunswick Inc., [1986] 1 S.C.R. 549 at pp. 591 – 92, per Wilson J. (granting leave to appeal to a non-party); British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214 at p. 240 (issuing injunction on the court's own motion to guarantee access to court facilities); R. c. Morales, [1992] 3 S.C.R. 711 at pp. 754-55, per Gonthier J. (discretion regarding bail); R. v. Hinse, [1995] 4 S.C.R. 597 at para. 21, per Lamer C.J. (stay of criminal proceedings for abuse of process); MacMillan Bloedel Ltd. V. Simpson, [1995] 4 S.C.R. 725 at paras. 29-31, per Lamer C.J. (punishing for contempt out of court); R. v. Rose, [1998] 3 S.C.R. 262, at para. 64, per L'Heureux-Dubé J., and at para. 131, per Cory, Iacobucci and Bastarache JJ. (discretion to grant a right of reply in a criminal trial); Cunningham v. Lilles, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18 (authority to refuse defence counsel's request to withdraw); R. c. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78 at paras. 24-34, per Binnie J. (granting interim costs); R v Imona-Russell, 2013 SCC 43, [2013] 3 S.C.R. 3, at para 20); Endean v British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162. at paras 23, 24, and 60.

[75] As described by the Court in R. v. Caron, 2011 SCC 5 at para. 24, the inherent jurisdiction of the provincial superior courts is broadly defined as “a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so” (Jacob, at p. 51). These powers are derived “not from any statute or rule of law, but from the very nature of the court as a superior court of law” (Jacob, at p. 27).

[76] As stated earlier, had this case remained in the OCJ following the severance order, s. 551.3(4) would apply and the Garofoli application could be re-opened if, in light of the fresh evidence, it would be in the interests of justice to do so. The same issue is now before me as the SCJ trial judge hearing the application to re-open the Garofoli ruling. This is not an appeal of Justice Prutschi’s ruling. Mr. El-Zahawi acknowledges that he is bound by that ruling. The issue is whether, pursuant to s. 551.3(4), the application should be re-opened in light of the fresh evidence, that is, Exhibit F.

[77] I reject the Crown’s submission that Mr. El-Zahawi must wait until he is convicted and then must file an appeal in order to resolve the issue as to whether the Garofoli application should be re-opened. Based on that scenario, Mr. El-Zahawi would undergo a trial where the intercepted communications obtained pursuant to the Platinum Part VI would be admissible, notwithstanding the fact that the Crown in Askari conceded that the non-disclosure of Exhibit F impacted the fair trial rights of those defendants and, as a result, asked Justice Bird to stay the charges.

[78] According to the procedure suggested by the Crown, Mr. El-Zahawi, if convicted, would then have to file an appeal in the Court of Appeal, and stand in queue to have his appeal heard. There are obvious concerns about the fairness of this procedure, including the significant delay it would cause in the final resolution of this case. It is not in accord with the principles of timeliness and efficiency that are advocated for in our criminal justice system.

[79] In summary, the relevance and significance of the non-disclosed material contained in Exhibit F is obvious, given the stay of proceedings granted in Askari and the Crown’s subsequent decisions to stay the charges in Vinogradsky and the other charges that Mr. El-Zahawi was facing in Newmarket. The fresh evidence in the form of Exhibit F constitutes a material change in circumstances and, as a result, the test in “R.V./ss. 551.3(4) and 591(4.2)” has been met.

Sub-issue (b): Were the undertakings given by the defence to address potential jurisdictional gaps that may have resulted from the severance order and Mr. El-Zahawi’s re-election to have his trial in the SCJ, or were they given, as asserted by the Crown, as the quid pro quo for the Crown’s consent to the severance order and re-election and that Mr. El-Zahawi should be bound by them in perpetuity.

[80] Crown counsel submits that even if the test in R.V. has been met, the Garofoli application should not be re-opened, given Mr. El-Zahawi’s undertakings to be bound by the ruling when the orders with respect to severance and the re-election were made. The position of the Crown is that Mr. El-Zahawi’s agreement to be bound by the ruling was the quid pro quo for the Crown’s consent in each instance. The Crown submits that the giving of his agreement was a tactical or strategic decision that Mr. El-Zahawi, in hindsight, now regrets or has second thoughts about. As a result, he ought not to be released from his undertaking and should not be allowed to re-open the Garofoli application, even though, at the time of his undertakings, Mr. El-Zahawi was unaware of the existence of the material contained in Exhibit F – material which is admittedly relevant to his application and, were it not for informant privilege, would be and should have been disclosed to him.

[81] Mr. Schultz relies on the decisions in Lapps and Eliasson in support of his position that Mr. El-Zahawi’s undertakings to be bound by Justice Prutschi’s Garofoli ruling were tactical or strategic decisions and, as such, he ought not to be permitted to re-open his Garofoli application.

[82] In Lapps, the accused attempted to resile from his undertaking with respect to trucking records in his possession and which he chose to introduce as evidence at his first two trials. The Crown was not aware of the records until Mr. Lapps introduced them at his first trial. Prior to his third trial, Mr. Lapps agreed that the Crown could introduce the records as part of its case. However, he later brought an application to resile from that agreement on the basis that his decision to admit the records was made in haste. Justice McWatt dismissed his application after finding that his attempt to withdraw his undertaking was strategic, tactical, and prompted by hindsight or second thoughts.

[83] As noted by Mr. Wilkinson, many of the cases dealing with decisions made by an accused to call or not call evidence concern evidence that was known to them and in their possession and control at the time the decision was made. These purely strategic decisions are attached directly to the evidence in issue. For example, the accused in Lapps attempted to withdraw his agreement in regard to evidence that he personally possessed and had earlier admitted into evidence himself. Similarly, an accused who decides not to call evidence in his possession but later regrets that decision might well lose an application to reopen the case and admit it as fresh evidence. These scenarios are very different from the one in the present case.

[84] At the time of his undertaking to be bound by Justice Prutschi’s ruling, Mr. El-Zahawi had no knowledge of the contents of Exhibit F, which only came to light when Justice Bird brought it to the attention of Crown counsel during the Askari application in May 2022. This was well after the dismissal of Mr. El-Zahawi’s Garofoli application and his decision to re-elect to have his trial in the SCJ. Decisions that Mr. El-Zahawi made in terms of the timing of his trial or the level of court he elected to have his trial in are not attached to the disclosure in issue here – namely, Exhibit F, which neither Justice Prutschi nor Crown counsel at Mr. El-Zahawi’s Garofoli application recognized as disclosable pursuant to Stinchcombe. Nor did Crown counsel at the Askari application recognize it as such until Justice Bird brought it to their attention.

[85] In Eliasson, the appellant, following his conviction for assault, sought a mistrial or to re-open his trial based on fresh evidence. During the trial, he admitted that the complainant’s injuries had resulted from an assault. The complainant, who could not identify her assailant, had testified that she had been struck with a metal bar on both arms. Following the trial but prior to sentencing, defence counsel received an anonymous telephone call advising that the complainant’s injuries could not have occurred as she attested. The Crown then obtained a report from the surgeon who treated the complainant, suggesting that her injuries were more consistent with a fall than from a direct blow or “nightstick injury.”

[86] The trial judge applied the four-part test for the admission of fresh evidence set out in Palmer. In dismissing the application to re-open the trial, he stated that he was not satisfied the admission of the surgeon’s evidence would change the outcome and, as a result, it was not decisive or potentially decisive. He also implied that the application was an attempt to reverse a tactical decision made at trial, which was to be resisted. The accused appealed.

[87] Although the Alberta Court of Appeal dismissed the appeal, it disagreed with the trial judge that the application to admit fresh evidence was a tactical decision. At para. 29, the Court described a tactical decision as follows:

There may be occasions where admissions can be described as “tactical”, but that is not universally so. A decision is properly described as “tactical” when it involves a balancing of advantages and disadvantages of different courses of conduct. If the appellant makes a decision about his defence because he perceives that there are advantages to one option, where there are fewer or no advantages to the other option, the decision could be described as tactical. [Emphasis added.]

[88] The Court found that the appellant likely made the decision to admit that there had been an “assault” because there was no reason at that time for him to dispute the complainant’s evidence on that point. In these circumstances, there was no basis to call his admission “tactical.” The Court held that the decision to enter into the agreed statement of facts was more practical than tactical.

[89] Similarly, there is no basis on which to call Mr. El-Zahawi’s agreements to be bound by Justice Prutschi’s Garofoli ruling tactical. Like the accused in Eliasson, who agreed to a statement of fact while unaware of potentially significant evidence that only came to light post-conviction, Mr. El-Zahawi agreed to be bound by Justice Prutschi’s Garofoli ruling while unaware of the material contained in Exhibit F, which is admittedly relevant to his Garofoli application but which only came to light after Justice Prutschi’s ruling. Justice Bird described that material as significant.

[90] In any event, Mr. El-Zahawi’s application to re-open the Garofoli application does not constitute a reversal of a prior tactical decision. Mr. El-Zahawi agrees that he undertook to be bound by Justice Prutschi’s decision in exchange for the Crown’s consent to the severance and re-election orders. He is not attempting to reverse those decisions and accepts that he is jurisdictionally bound by Justice Prutschi’s ruling. However, he submits that the ruling must be revisited in light of the fresh evidence that arose in the Askari proceedings. Simply put, there was a material change of circumstance based on additional information unknown and unknowable to Mr. El-Zahawi at the time that he conducted the pre-trial motions before Justice Prutschi.

[91] When Justice Prutschi made the severance and re-election orders, it was not necessary that Mr. El-Zahawi give an undertaking to be bound by his Garofoli ruling. Mr. El-Zahawi was bound by the rulings in any event by virtue of s. 551.3(4). That section (reproduced above) states that the orders were binding “unless the court is satisfied it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.” It is significant that Parliament specifically chose to codify the “fresh evidence” language as an example.

[92] Since it was not necessary for Mr. El-Zahawi to give the undertakings when the severance and re-election orders were made, the question arises as to why he gave the undertakings and what effect, if any, they have on the test in R.V.

1. The Purpose of the Undertakings

[93] The position of the defence is that the undertakings are not a jurisdictional bar to re-opening the application and that they do not change the test in R.V..

[94] The position of the Crown is that the undertakings were meant to bind Mr. El-Zahawi to the Garofoli ruling forever.

[95] Mr. Wilkinson submits that the undertakings he gave on Mr. El-Zahawi’s behalf were nothing special or out of the ordinary. They were simply intended to fill any potential jurisdictional gaps resulting from the severance order and the re-election from a trial before an OCJ judge to a trial before a SCJ judge, absent a showing of fresh evidence, material change in circumstances, or material non-disclosure.

[96] Mr. Wilkinson submits that the intended purpose of the undertaking given in regard to the severance order was to acknowledge that although he had come into the trial process late as a result of Mr. El-Zahawi’s change of counsel, and was also denied the ability to cross-examine the affiant pursuant to an earlier case management order that Mr. Khamo’s lawyer would conduct the cross-examination on behalf of all the accused, he was still content to participate in the pre-trial motion and remain bound by Justice Prutschi’s decision when Mr. El-Zahawi’s severed trial continued at a later date.

[97] In terms of the undertaking with respect to Mr. El-Zahawi’s re-election from the OCJ to the SCJ, both Crown and defence counsel were concerned about what impact the re-election might have on the jurisdiction of Justice Prutschi’s ruling. These concerns arose from the fact that there was, as Mr. Wilkinson put it, a “jurisdictional lacuna” in the legislation. The case management provisions addressed the situation where a case management judge made a ruling and another judge of the same court conducted the trial. Those provisions kept the jurisdictional line of the rulings intact. However, there was no legislation to address the jurisdictional switch that took place in this case, that is, where a ruling was made by an OCJ trial judge followed by the accused’s re-election to have his trial in the SCJ. Mr. El-Zahawi’s undertaking to be bound by Justice Prutschi’s ruling was intended to bridge that gap in the legislation. It would allow both the Crown and defence to appeal the ruling after the trial had concluded. It was also intended to prevent either party from showing up on the first day of the severed, re-elected trial in the SCJ and seeking to revisit the Garofoli ruling absent a showing of fresh evidence, a material change in circumstances, or material non-disclosure.

[98] The position of the Crown is that Mr. El-Zahawi’s undertakings bound him to Justice Prutschi’s ruling forever, even if the test in R.V. was met and a judge of the Superior Court of Justice was found to have jurisdiction to re-open the Garofoli application.

[99] The difficulty with the Crown’s position is that it assumes that the undertakings were given without any of the caveats contained in the legislative provisions.

[100] Crown counsel is effectively taking the position that the undertakings given by Mr. El-Zahawi was as follows: “Yes, I undertake to be bound by the Garofoli ruling and what that means is that I agree to be bound even if new evidence appears, or there is a material change in circumstance, or there is material non-disclosure.”

[101] Just like the legislation, it only makes sense that Mr. El-Zahawi’s undertaking had an implied qualifier – namely, the undertaking stands but if there is material non-disclosure/change in circumstances, the undertaking is effectively revoked. The undertaking does not have the capability of superseding the test, which is what the Crown’s argument rests on. If the test in R.V. has been met and I have jurisdiction, the undertaking lapses or loses its force.

[102] I would add that Mr. Wilkinson’s explanation for providing the undertakings is in accord or consistent with the concerns that both the Crown and defence had with respect to jurisdictional issues that could potentially arise as a result of the severance and re-election orders. The undertakings were not intended to bind Mr. El-Zahawi to Justice Prutschi’s ruling forever and even in the event of new evidence or new material disclosure. They were intended to preserve the jurisdiction of his ruling.

[103] In conclusion, the application by Mr. El-Zahawi to re-open the Garofoli application is allowed in light of the fresh evidence – that is, Exhibit F.

Issue #4: If the decision to re-open the Garofoli application is not governed by the decision in R.V., has the applicant met the modified Palmer test set out in Trotta?

[104] My rulings on Issues 1, 2, and 3 have rendered the necessity of dealing with Issue 4 moot. Issue 4 was proposed as an alternative argument. I will, however, briefly address it below.

[105] Neither the defence nor the Crown argued that the Trotta framework could not be re-configured to address the resolution of disclosure disputes pre-conviction. In fact, Mr. Wilkinson submitted that if the court was of the position that there exists a Trotta/Palmer overlay in this case, or to use his words, a “modified or even more watered-down Palmer test”, then the test has been met “in flying colours.”

[106] Mr. Schultz agreed that a modified test is applicable, albeit for different reasons. While the Crown raised the “wrinkle” from Trotta – that the Court of Appeal draws the distinction between a convicted person versus an accused person facing charges – he nonetheless agreed that a modified framework is available for use pre-conviction. Mr. Schultz agreed that the Garofoli application was a pre-trial motion at the Ontario Court of Justice and not a trial that resulted in a conviction. Regardless, “given the way everything is played out … it would be more akin to that because there was a finality to that in that the Khamo and Grant matters did finalize and result in convictions.” Mr. Schultz’s position is that Mr. El-Zahawi was not duly diligent, that decisions were made “strategically”, and that had more inquiries been made, then the “light bulb” would have gone off for Justice Prutschi as it did for Justice Bird.

1. The Law

[107] The Trotta case dealt with the resolution of disclosure disputes on appeal. At para. 23, Justice Doherty stressed that “[w]hile the nature of the Crown’s disclosure obligation and its rationale remain constant after conviction, the resolution of disclosure disputes on appeal will require a somewhat different analytical framework than that described in Stinchcombe”. Two rationales were presented as support for this different approach. First, the presumption of innocence is no longer a factor on appeal. Second, the right to make full answer and defence has been spent. Both rationales are alive and amplified pre-conviction, at the trial stage.

[108] To suggest that a trial court can modify the Trotta/Palmer test is not supported by the rationales that the Court of Appeal proposed for the test – rationales that squarely dealt with the accused in the post-conviction realm.

[109] However, if one could indeed fashion a “watered-down” analysis for use in the pre-conviction environment, I find that the test has been met. As counsel provided submissions on the due diligence aspect, I will briefly address that issue. It must be kept in mind that the due diligence criterion ensures that litigants “put their best foot forward when first called upon to do so.” The focus at this stage is on the “conduct” of the party and whether all “reasonable steps to present their best case at trial were taken”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at paras. 36, 38, and 43.

2. Application to the Facts: Due Diligence

[110] Mr. El-Zahawi was duly diligent.

[111] Due diligence is not applied as strictly in a criminal case as it would be in a civil case. The due diligence criterion should not be applied inflexibly and will yield where its application might lead to a miscarriage of justice: R. v. Fraser, 2011 NSCA 70, 306 N.S.R. (2d) 201, at para. 36.

[112] Mr. El-Zahawi could not have done anything more in terms of obtaining the information. Comparing the manner in which the Askari and El-Zahawi applications were undertaken shows that there were no significant differences in how the two sets of applicants approached the process.

[113] The following list highlights salient aspects of the record showing Mr. El-Zahawi’s due diligence:

a. As part of a combined Step 2/Step 6 process, Justice Prutschi determined that the judicial summaries were all that could be provided without compromising informant privilege. Rather than trying to convince Justice Prutschi to provide more (Step 2), Mr. El-Zahawi’s group took Justice Prutschi at his word. This resulted in Mr. Fedorowicz and Mr. Wilkinson attempting to get additional disclosure during Step 6.

b. Both Mr. Fedorowicz and Mr. Wilkinson argued that the judicial summaries were inadequate. Justice Prutschi created a naming convention referring to the information from the informant(s). Counsel asked if they could be advised as to which redactions were specific to their clients. This information was not provided.

c. While it is true that a separate Step 2 was not undertaken, Justice Prutschi was adamant that the summaries provided were all that could be given without violating informant privilege. This led Mr. Fedorowicz and Mr. Wilkinson to argue that it would be impossible to challenge the information from the informants without knowing who the target was. The fact that Step 2 and Step 6 were combined is of no moment.

d. In Askari, the applicants asked Justice Bird if they could be told if the redacted portions of the ITO related to the applicants. However, that issue was not resolved as the Askari group was still in the process of finalizing the judicial summaries when the stay was granted. They never got to the stage where they would be contesting the adequacy of the judicial summaries.

e. Both the El-Zahawi and the Askari Group asked for and were permitted to cross-examine the affiant. They had slightly different groups of headings that were specific to their individual cases. In Askari, counsel made submissions in regard to the cross-examination of the affiant and the cross-examination commenced. Justice Bird, on her own accord, identified a vetting issue, which led her to raise the matter with the Crown. This led to the stay of the charges based on the Crown’s inability to comply with its disclosure responsibilities. The judicial summaries were never finalized given the process was still underway when the stay was granted.

f. The Askari group brought an application to cross-examine the affiant that was more expansive than the application brought by the El-Zahawi group. However, in both cases, the cross-examination was focused on the same thing – that is, showing that the affiant was wholly incredible and unreliable.

g. Crown counsel noted that both groups had the same material and the same authorization. All groups were contesting the same authorization. The Crown submits that in these circumstances, the El-Zahawi group ought to have consulted or collaborated with counsel acting for the Askari group in preparing for the Garofoli application. However, it seems highly unlikely that such collaboration would have made a difference. Justice Bird recognized on her own accord the relevance of Exhibit F to the Garofoli application. I note that neither Justice Prutschi nor the Crowns prosecuting Mr. El-Zahawi recognized its relevance. Nor did Crown counsel who was prosecuting the Askari group until its significance was pointed out to her by Justice Bird. All of these individuals had the unredacted ITO.

h. Crown counsel noted that the cross-examination that was granted by Justice Bird was not applied for before Justice Prutschi. This was partly due to the fact that the record was amplified before Justice Bird but not before Justice Prutschi. There was nothing to prevent Mr. El-Zahawi from following the same course. The Crown argues that the amplified record led to a difference in outcome in terms of the cross-examination that was permitted, and that it was this difference that “turned the lightbulb on” for Justice Bird. However, the mechanism by which the disclosure came to Justice Bird’s attention is simply a contextual difference. There was a difference in approach in terms of the scope of cross-examination that Justice Prutschi was willing to admit. Both groups availed themselves of the procedural options on the application. The difference in outcome was not the result of what was asked for but the difference in opinion of two different judges.

Conclusion

[114] A comparison of the Askari and El-Zahawi Garofoli procedures demonstrates that the non-disclosure was not a result of any significant disparity in how the two applicants ran their respective applications. Mr. El-Zahawi took all reasonable steps to put his “best foot forward.” The evidence contained in Exhibit F could not, by the exercise of due diligence, have been obtained. The contents of Exhibit F materialized fortuitously by Justice Bird. To tie the serendipitous discovery of the material in Exhibit F to the due diligence criterion would create an unduly strict interpretation of due diligence – one well beyond what the Supreme Court of Canada intended in Palmer and Barendregt v. Grebliunas.

[115] In addition, it is known from the Crown’s submissions, and the results in other cases where the accused had yet to be convicted, that the material in Exhibit F is capable of affecting the outcome of Mr. El-Zahawi’s Garofoli application and producing a different result from that achieved before Justice Prutschi. Overall fairness dictates that the Garofoli application be re-opened rather than making Mr. El-Zahawi wait until his case reaches the Court of Appeal.

[116] Accordingly, Mr. El-Zahawi’s application to re-open his Garofoli application is allowed.

[117] Following the conclusion of counsels’ submissions in this case, I advised counsel of my decision – that is, that the application was allowed, with written reasons to follow. Upon learning of my decision, Mr. Schultz advised that although Exhibit F was relevant to the application, it could not be disclosed because of informant privilege. He conceded that failure to disclose the contents of Exhibit F constituted a violation of Mr. El-Zahawi’s s. 7 Charter rights and asked that the charges against him be stayed pursuant to s. 24(1) of the Charter. The charges have accordingly been stayed.

Garton J.

Released: August 21, 2023