R. v. Cunsolo, 2007 ONCA 356
CITATION: R. v. Cunsolo, 2007 ONCA 356
DATE: 20070510
DOCKET: C46311
COURT OF APPEAL FOR ONTARIO
Feldman, Armstrong and Juriansz JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
ROBERT CUNSOLO
Appellant
Leo Adler for the appellant
Sandra Caponecchia for the respondent.
Heard: April 27, 2007
On appeal from the order of Justice Terrance P. O’Connor of the Superior Court of Justice, dated November 29, 2006.
Feldman J.A.:
[1] The appellant and others, including Ms. Baksh, were separately charged with large-scale mortgage fraud. The appellant has already had his preliminary hearing and has been bound over for trial in September, 2007. He has been subpoenaed to testify at the preliminary inquiry into similar fraud charges against Ms. Baksh, scheduled to begin on May 14, 2007. He moved before O’Connor J. to quash the subpoena on the grounds that there was no evidence to show that the appellant had any material evidence to give and, because the Baksh preliminary inquiry will take place before his trial, he would suffer prejudice by being forced to testify and give up his right to silence. Essentially, the appellant’s position was that the Crown was actually seeking evidence to be used against him in his own trial, not evidence relevant to Ms. Baksh.
[2] O’Connor J. refused to quash the subpoena. For the reasons that follow, I would dismiss the appeal.
[3] Section 698(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides:
Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this part requiring that person to attend to give evidence.
[4] The appellant has not given any statement to the police. The Crown attorney who issued the subpoena acknowledged to appellant’s counsel that he did not know what the appellant would say as a witness.
[5] The basis for the Crown’s belief that the appellant has material information regarding Ms. Baksh’s activities is essentially that when he was arrested, he was found with documents that are alleged to be related to some of the fraudulent mortgages, and in particular, to addresses that are also linked to transactions by Ms. Baksh’s corporation. At his preliminary hearing, the appellant’s position was that although the briefcase containing those documents belonged to him, he had lent it to Mr. Beg, a man he knows, who pled guilty to similar fraud charges. Counsel submitted on the motion that the appellant’s position is that he has no information regarding Ms. Baksh and the Crown is on a fishing expedition for information about his own defence.
[6] On the motion before O’Connor J., the appellant argued 1) that the Crown had not demonstrated that he had material information about Ms. Baksh and, 2) that if he were forced to testify at her preliminary inquiry, he would be asked to divulge his defence and information that the Crown could use against him in his own trial.
[7] The motion judge rejected both arguments. He found that the appellant’s fair trial rights were fully protected by s. 5(2) of the Canada Evidence Act, R.S.C. 1985, c. C-25 and s. 13 of the Charter of Rights and Freedoms, against the use of anything he says or any evidence derived from it, as well as from its use in cross-examination if he were to testify at his trial and contradict what he says at the Baksh preliminary inquiry. See R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609.
[8] The motion judge acknowledged that there is a clear relationship between the evidence the Crown seeks and the case against the appellant, and that the appellant’s concern about disclosure of his defence has some merit. He concluded, however, that the appellant is protected from derivative use and the public interest in prosecuting serious criminal offences overrides the relatively minor possible prejudice the appellant could suffer. The motion judge made the specific finding that the only prejudice the appellant could face as a result of testifying would be the subsequent derivative use of his testimony at his trial. Because the appellant will be protected from such use, he is fully protected: see British Columbia Securities Commission v. Branch, 1995 142 (SCC), [1995] 2 S.C.R. 3 at para. 9.
[9] On the issue of materiality, the motion judge found that the evidence the appellant could give is potentially important to the prosecution because he was allegedly involved in the same offence as Ms. Baksh and is therefore in a position to shed light on her involvement. The fact that Mr. Beg is also available to the Crown does not mean that the appellant’s potential evidence is redundant or unimportant. At worst it will be confirmatory of Mr. Beg’s evidence.
[10] The appellant’s main argument on the appeal concerns the issue of materiality. In the course of his reasons, the motion judge said the following:
I disagree as to the significance of the prejudice he faces. The Crown’s predominant purpose in calling him is to obtain evidence in the prosecution of Ms. Baksh, not to obtain evidence to incriminate him. Although the Crown is unable to specify exactly what evidence he hopes to extract from the applicant and to a certain extent can be said to be on a fishing expedition, this is to be expected when calling a person accused of the identical offence to that being prosecuted. The fishing expedition in any event is for evidence against Baksh, not the applicant.
[11] The appellant says that the motion judge erred by not quashing the subpoena after he stated that the Crown was on a fishing expedition for evidence relevant to Ms. Baksh.
[12] In my view, although this reference taken out of context could be fatal to the subpoena, when it is viewed in the context of the reasons as a whole, as well as the colloquy with counsel, it is clear that the motion judge was satisfied based on the record before the court, that the Crown had a basis to expect that the appellant has material evidence on the involvement of Ms. Baksh in the fraudulent mortgage scheme. That basis is the appellant’s connection with Ontario Wide Finance and that company’s documents found in his car and briefcase relating to fraudulent mortgage transactions for which Ms. Baksh’s company did the legal work. Obviously, without a statement, the Crown does not know exactly what the appellant will say. However, in my view, the motion judge was entitled to conclude that Mr. Cunsolo has material information relating to the charges against Ms. Baksh.
[13] I also see no error in the motion judge’s conclusion, based on the case law from the Supreme Court of Canada, that because the appellant is fully protected against any use of his testimony by the Crown at his own trial, the small prejudice of disclosing his defence is not sufficient to set aside the subpoena.
[14] In the result, I would dismiss the appeal.
Signatures: “K. Feldman J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree R. Juriansz J.A.”