ONTARIO COURT OF JUSTICE DATE: 2021·02·08 NEWMARKET

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

SALLOUM JASSEM, MARTINA LEACHMAN, HEATHER ROWBOTTOM, DWAYNE COUNSELL, MOSTAFA ASKARI, SEIF JASSEM, ERIN PRENTICE, KYLE FLINDERS, ROBERT EDWARDS.

RULING ON APPLICATION TO PERMIT UNDERCOVER OFFICER WITNESSES TO WEAR PARTIAL FACE MASKS

Evidence and Submissions Heard: 8 February, 2021. Delivered: 8 February, 2021.

Counsel: Mr. James Clark, Ms. Jennifer Campitelli...................................... counsel for the Federal Crown Ms. Sophina James.................................................................... counsel for the Provincial Crown Mr. Don Carter............................................................................ counsel for the Dwayne Counsell Ms. Hinal Ghelani...................................................................................... counsel for Seif Jassem

KENKEL J.:

Introduction

[1] The Zoom video conferencing platform has been an essential innovation during the pandemic. However, along with the benefits, sometimes new technologies can also present new issues.

[2] Three of the witnesses in this preliminary hearing are designated undercover officers with the York Regional Police. As this hearing is proceeding over Zoom, the Federal Crown submits that the digital nature of the hearing poses a security risk for those witnesses. The Crown applies for an order permitting those officers to testify remotely while wearing a COVID-style partial face mask. Two of the defendants oppose the application.

[3] These reasons explain why the Crown’s application is allowed.

The Application

[4] Project Platinum is a joint-forces investigation into alleged offences of drug trafficking and violence within the tow truck industry in the Greater Toronto Area. The nine co-accuseds in this part of the project are charged with a combined total of 117 offences including conspiracy to commit murder, criminal organization offences, firearms possession and trafficking, and drug trafficking offences.

[5] The Crown submits that the ease with which a participant in a Zoom hearing can capture a digital image of a witness poses a risk for police officers with undercover (UC) designations. They propose that the three UC witnesses in this case testify while wearing COVID-style masks covering half of their face.

[6] The Crown submits the partial masks are necessary for the following reasons:

• The three witnesses are members of the York Regional Police undercover (UC) officer pool. They have and will be deployed in an undercover capacity, which is dangerous by nature and requires anonymity.
• Zoom poses a security risk that is not present during an in-person proceeding. Any person who has access to the proceedings has the ability to capture a digital image or video of a witness who is testifying.
• Section 136 of the Courts of Justice Act, RSO 1990 c C 43 is not sufficient to protect the UC witness given the ease with which a digital image or video may be captured and transmitted over the internet.
• The credibility of witnesses is not an issue in a preliminary hearing.
• Section 486.31(1)(e) of the Criminal Code contemplates that in some cases courts must take steps to prevent the disclosure of an undercover officer’s identity.
• The defendants otherwise have full disclosure of the names and identities of the three witnesses.

[7] The Crown submits that permitting three of the witnesses to wear partial face masks while testifying remotely would ensure their safety without any impact on the defendant’s rights.

The Response

[8] Mr. Carter and Ms. Ghelani oppose the application for the following reasons:

• The provisions of the Courts of Justice Act and the Criminal Code provide sufficient protection to address the Crown’s concerns.
• There are other potential procedures such as having defendants attend the hearing in the same room as their counsel, who can then monitor to ensure there is no screen capture or monitoring during the evidence of these witnesses.
• The court is able to determine who is attending the virtual hearing. The court can order anyone to turn their video on to confirm identification.
• The three officers were not operating in an undercover capacity in this phase of Project Platinum.
• There is no evidence that the police received a specific threat to identify the UC officers in this case.
• While credibility is not an issue in a preliminary hearing, defence counsel still need to assess credibility for trial purposes. Testifying with a mask may restrict that assessment to some degree.

[9] There is a tradition and presumption related to the open courts principle that witnesses testify directly without masks or screens. That presumption is subject to limited exceptions under the Criminal Code. An order that creates a further exception for UC officers is a dangerous precedent.

The Order

[10] Without the Zoom video conferencing platform, this preliminary hearing could not have been held in the Newmarket Courthouse under current public health regulations. The size of the group with all participants exceeds maximum courtroom capacity even in our largest courtrooms.

[11] It’s not disputed that a participant in a video conference hearing could easily capture a digital image of a witness from their computer or phone screen. That’s not something that could be done in an in-person courtroom. There is no practical way to monitor screen capture or recording. If a digital image of a UC officer were to be transmitted to the internet, it would be very difficult if not impossible to determine which participant in the hearing was responsible. Section 136 of the Courts of Justice Act is easily enforced during in-person hearings, but it provides very limited protection in the context of virtual hearings.

[12] I find that the Crown has proved it is necessary to permit the UC officers to testify while wearing partial face masks for the following reasons:

• The evidence on this application shows that the risk identified by the Crown is real, not speculative. DS Torres, Commander of the York Regional Police Strategic Intelligence Unit, testified that UC officers often work in the investigation of criminal organizations and national security operations. The identities of these officers would be very valuable information for persons involved in those activities. DS Torres explained that there are websites that are set up to expose the identity of undercover officers and those sites have disseminated such information about UC officers in the Toronto region including photographs. He gave an example of a recent RCMP investigation where a suspect’s query of such a website exposed an actual UC operator.
• The charges in this case include alleged criminal organization offences.
• Capturing the identity of a witness is a covert process. Threatening to do so would defeat the purpose. It’s not necessary that the Crown show evidence of a specific threat where no such notice would be expected or given.
• The fact that the UC officers were not operating on that basis in this phase of the project does not decrease the present or future risk.
• The evidence shows that the provisions of the Courts of Justice Act and the Criminal Code do not provide sufficient protection for the safety of these specific witnesses in the context of a virtual Zoom hearing.
• Requiring defence counsel to actively monitor their clients to prevent screen capture or recording is not a reasonable alternative.
• Facial demeanor evidence is of little value in the modern trial – R v Rhayel, 2015 ONCA 377 at paras 85 to 89. Such evidence plays no role in a preliminary hearing.
• There’s no evidence that the proposed order would have any impact on the fairness of the proceedings or the ultimate ability of any of the defendants to make full answer and defence to the charges.

[13] The Crown is not asking that the UC officers be permitted to turn off their video while testifying. These are not secret witnesses, their identities have already been disclosed to the defence. The suggested procedure of permitting three UC officers to wear a partial mask while testifying is a compromise that achieves an appropriate balance between the right of confrontation and the security issues identified in this application. It’s interesting to note that it is only in the context of a virtual hearing that this would be a discussion. In the few in-person trials being held in this province during the pandemic, all witnesses attending court are typically required to wear masks throughout their attendance including during their testimony. See: R v Bdeir, 2021 ONCJ 54.

[14] This court orders that any information that could identify the three witnesses who are the subject of this application shall not be published, broadcast or otherwise disclosed during the course of the proceedings pursuant to ss 486.31(1)(e), 486.5(2), the general power in s 537(1)(i) and the s 539 general publication ban that was already imposed.

[15] Further, under s 537(1)(i) the court orders that the three UC designated witnesses will be permitted to wear COVID-style (surgical or similar) partial masks while testifying.

Delivered: February 8, 2021. Justice Joseph F. Kenkel