Court File and Parties

Ontario Court of Justice

Date: 2018-10-29

Court File No.: Newmarket 17-02584

Between:

Her Majesty the Queen

— and —

Swetu Chheda

Ruling on Application to Reopen

Application heard: October 29, 2018

Ruling Delivered: October 29, 2018

Counsel:

• Ms. Kellie Hutchison, counsel for the Crown
• Mr. Jordan Gold, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Chheda was convicted at trial of five offences arising from his attempt to purchase sexual services from two 14 year old girls. When he arrived at the hotel room bearing the two hot chocolates they requested he found that he had been speaking to an officer of the York Regional Police.

[2] Mr. Chheda discharged his trial counsel and now applies to re-open the case. The defence submits that late disclosure prior to trial combined with the failure to disclose other relevant documents may have deprived the accused of the ability to make full answer and defence. The Crown submits that the defence was given notice of the availability of further disclosure. While some important disclosure only arrived weeks before trial, the defence did not request an adjournment. The Crown submits the application should be dismissed.

The Disclosure Issue

[3] The disclosure issue both counsel refer to arises from an unusual circumstance – a phone seized by police when they searched Mr. Chheda's car pursuant to warrant was not the one used to communicate with the undercover officer. It appears that once a cellphone was found it did not occur to the search officer to look for another. It was only after the production order results were obtained from the first phone that the police realized that there must have been a second phone. A second production order for a phone registered in the name of Mr. Chheda's wife resulted in relevant evidence.

[4] The production order in relation to the first phone was obtained August 23, 2017. It was included in Disclosure Set 6 which was picked up by counsel on November 21, 2017. The results of the first production order were contained in Disclosure Set 7 also picked up that day. The defence subsequently requested a copy of the Information to Obtain (ITO) relating to that production order.

[5] The Crown responded on January 19, 2018 and Disclosure Set 9 including that ITO, the supporting affidavit and other information related to that order was provided on February 6, 2018. The February disclosure also contained new information about a further production order granted on January 24, 2018 in relation to a second phone from a different service provider. Disclosure Set 10 contained the relevant information about the second production order from January, including a copy of the affidavit filed in support of the ITO.

[6] Disclosure Set 10 was available for pickup at the Crown's office on April 20, 2018. The Crown's office left a phone message that day with the defence counsel's office. The affidavit of trial counsel indicates that for some reason he did not personally receive that message.

[7] Once Ms. Hutchison was re-assigned to this case in April I'm advised she and the defence trial counsel exchanged over 40 emails relating to disclosure and case management. The defence requested a second copy of Disclosure Set 10 and one was made resulting in two copies at the Crown's office available for pickup. The Crown specifically sent the results of the January 24th production order on April 11, 2018. The defence made no request for the ITO and affidavit for those records either before or during the trial that started April 30, 2018.

The Defence Position

[8] Mr. Gold, not counsel at trial, submits that a review of the case post-conviction shows that the defence did not review disclosure related to the obtaining of the second production order. Mr. Gold's review of Disclosure Set 10 apparently shows there may be grounds for a Charter application which could lead to excisions in the ITO such that the second production order might be quashed. As defence counsel didn't get notice of Disclosure Set 10 and did not otherwise request the materials related to the second ITO, counsel could not have known about the possible Charter issue. The accused was not able to make full answer and defence and the court should either re-open the case or declare a mistrial.

The Crown Position

[9] The Crown submits that their office fulfilled its Charter obligation by providing disclosure in a timely way. The Crown provided direct information about the second production order application in Set 10 available to the defence as of April 20, 2018. The defence had indirect evidence of the second production order by reference as early as January 24, 2018. A fax sent February 6, 2018 to defence counsel's office included several references to a warrant executed on January 25, 2018.

[10] The results from the second production order were sent to the defence by email on April 11, 2018. If the defence had not considered that there was a second order to that point the fact of further disclosure that could not have come from the original order in relation to another phone showed there was a second order. Trial counsel's emails to the Crown afterward confirm that counsel knew there was an application for a second production order in January.

[11] The Crown submits that if trial counsel wished to challenge the second production order he did not pursue that issue with diligence. The Crown questions whether this accused would even have standing to bring the challenge contemplated for records of a phone that is registered to another person. Finally, the Crown submits that even if the phone tower evidence was excluded, the remaining evidence shows a strong circumstantial case proving this accused was the person who negotiated the purchase of sex from the officer as alleged.

Analysis

[12] The rigorous test for re-opening after verdict is set out in R v. Arabia, 2008 ONCA 565 at para 46.

[13] Re-opening applications often involve a request to consider new evidence that might cast doubt on the original verdict. Both of the cases that set out the legal framework for this application involved that type of evidence – R v. Arabia, R v. Kowall, [1996] OJ No 2715 (CA). This case is different in that the defence seeks to re-open the case to bring a Charter challenge in the hopes of excluding relevant evidence. While the accused is certainly entitled to a fair trial including the ability to challenge any evidence, there is nothing new in this case that could raise the possibility of a wrongful conviction. That's not the test, but the power to re-open would likely be given its least restrictive application in that context.

[14] The defence noted that this application is not meant in any way to be a criticism of defence counsel. The Crown agreed that trial counsel engaged throughout in active case management and appeared fully prepared for trial. I agree with both counsel. The trial was conducted in a focused fashion that showed preparation and familiarity with the evidence and legal issues.

[15] If the defence wished to challenge the admissibility of the results of the second production order the defence could have brought an application to adjourn either before or even during the trial. The defence was well aware of the results of that order and the circumstances show the defence chose not to pursue a challenge. The discovery of a potential legal issue months after trial by another counsel does not reasonably provide a basis to re-open the case.

[16] The failure of the defence to check the grounds for the second production order does not necessarily show a lack of diligence or effective assistance by trial counsel. Both the Crown and the defence relied upon those records at trial. An anomaly in the phone tower records was a very important circumstance central to the defence case on the sole issue of identification. The Crown otherwise had a strong circumstantial case. It would not have made sense for the defence to try to exclude the very evidence they said was exculpatory. It would not be fair to the Crown to now allow the defendant to re-open the case and pursue alternative legal issues.

[17] It's not necessary to address the standing issue.

[18] Even if the cell tower record evidence had been excluded at trial, a strong circumstantial case remained. The person negotiating sex with the officer agreed to purchase hot chocolates for the two girls and bring them to the hotel room. At 2033h that day the person confirmed they had the hot chocolates. At 2042 he texted "Here" and the officer texted "See you soon". At 2045h an officer saw a male enter the hotel holding two hot chocolates. At 2048h there was a knock and the officers opened the door to find Mr. Chheda standing alone holding two hot chocolates.

[19] The probability of any person arriving in Markham, at that particular hotel, at that particular room at that particular time, alone but carrying two hot chocolates purely by chance is nil. Even if the defence application to re-open were granted and a further application established a breach, and then a 24(2) application led to exclusion of the cell tower evidence, that could not reasonably have affected the result. The applicant is right that the judgment at trial carefully reviewed and discussed the cell phone tower evidence, but that was in part because it was relied upon by the defence as well as the Crown.

Conclusion

[20] I find the applicant has failed to meet the test for re-opening of the trial. This is not one of the "clearest cases" where a mistrial should be declared and I find it would be unfair to the Crown to do so. Despite the able arguments of Mr. Gold, the application is dismissed.

Delivered: October 29, 2018

Justice Joseph F. Kenkel