Court of Appeal for Ontario

Date: 20230920 Docket: C70688

Doherty, Rouleau and Zarnett JJ.A.

Between:

His Majesty the King Respondent

and

Afram Saeed Khamo Appellant

Counsel: Dan Stein, for the appellant Alex Hrybinsky and Andrew Hotke, for the respondent

Heard: September 18, 2023

On appeal from the convictions entered by Justice E. Prutschi of the Ontario Court of Justice on November 15, 2021, and on appeal from the sentence imposed on February 28, 2022.

Reasons for Decision

[1] The appellant appeals his convictions and sentence. He was convicted based primarily on communications intercepted under the authority of a judicial authorization.

[2] At trial, the appellant attacked the validity of the authorization. In the course of the “Garofoli” motion the trial judge redacted parts of the affidavit relied on to obtain the authorization (ITO). The trial judge provided judicial summaries of the redacted portions. The appellant argued at trial that the redactions combined with the inadequate summaries left him unable to meaningfully challenge the authorization and therefore unable to make full answer and defence.

[3] The trial judge rejected the appellant’s submission and admitted the interceptions. The appellant was convicted.

[4] A short time after the appellant’s conviction and sentence the same authorization came before a different judge in a different prosecution arising out of the same investigation. In R. v. Jassem, the accused challenged the lawfulness of the interceptions on basically the same grounds the appellant had advanced at his trial. On the “Garofoli” motion, the trial judge ultimately determined that the redacted ITO as amplified by the judicial summaries was insufficient to permit the accused to meaningfully challenge the admissibility of the communications and thereby make full answer and defence. The trial judge held that further disclosure by the Crown, either by the removal of certain redactions, or additions to the summaries, was required to permit the accused to make full answer and defence.

[5] The Crown indicated to the trial judge that any further disclosure would compromise the identity of confidential informants and therefore could not be made.

[6] Crown counsel did not indicate any desire to challenge the trial judge’s assessment of the adequacy of the redacted affidavit and the summaries. Instead Crown counsel invited the trial judge to enter a stay under s. 24(1) of the Charter. The defence then brought a motion to that effect and the trial judge entered a stay.

[7] Shortly after the Jassem proceedings had been completed, the Crown stayed charges in a third prosecution arising out of the same investigation and relying on the same authorization (R. v. Vinogradsky).

[8] The appellant seeks to adduce as evidence in the appeal, extracts from the proceedings in Jassem and Vinogradsky. The Crown concedes that the material should be received by this court, the appeal allowed, and the convictions quashed.

[9] We accept the Crown’s concession. Evidence is admissible on appeal if it is “in the interest of justice” to receive that evidence. The material proffered by the appellant impacts directly on the integrity of the criminal process in this case. The Crown’s concession in two subsequent proceedings that the trial should be stayed because the accused were unable to make full answer and defence without disclosure the Crown could not make would be entirely inconsistent with a Crown argument on this appeal that the appeal should be dismissed.

[10] The appellant presently stands convicted and sentenced as a result of a trial which the Crown has effectively conceded in two other prosecutions should not have gone ahead. Fairness requires that the appellant’s prosecution also be stayed under s. 24(1).

[11] The appeal is allowed, the convictions are quashed, a new trial is ordered, and a stay of that new trial is ordered.

“Doherty J.A.”

“Paul Rouleau J.A.”

“B. Zarnett J.A.”