Court File and Parties

DATE: March 29, 2022

Information Nos.: 0411-998-20-20039-01; 0411-998-20-30159-04; 0411-998-20-30159-06; 0411-998-21-20020-00; 0411-998-20-20040-03; 0411-998-21-20021-03

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN V HUSSEIN ASSAAD and JASON ISHRAKI

EXCERPT OF PROCEEDINGS (Ruling on Section 11(b) application)

REMOTELY before THE HONOURABLE JUSTICE S. RAY held on March 29, 2022, for an OTTAWA, Ontario matter

APPEARANCES: J. Nicol / D. Garg Counsel for the Crown J. Addelman Counsel for Hussein Assaad M. Frouhar Counsel for Jason Ishraki

TUESDAY, MARCH 29, 2022

...BEGINNING OF EXCERPT AS REQUESTED

Ruling

RAY, J. (Orally):

This is the judgment on the 11(b). It is an 11(b) application in the matter of Hussein Assaad and Jason Ishraki, who have been charged with criminal offences arising out of a police corruption and conspiracy investigation.

The total delay for Mr. Assaad adds up to more than 26 months and the total delay for Mr. Ishraki adds up to more than 30 months. Both are well over the 18-month presumptive ceiling.

As is well known, the Supreme Court of Canada decided in the Jordan case that once the presumptive ceiling is exceeded, the burden lies on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.

Circumstances are exceptional if they lay outside the Crown's control because they are reasonably unforeseen or reasonably unavoidable, and they cannot reasonably be remedied.

If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the complexity of the case, the delay is reasonable.

As also directed by the Jordan case, I will adopt a bird's-eye view of the case, rather than calculate the delay by parsing each day or month to determine whether each step was reasonably required.

The Crown submits that the primary cause of the delay in this case was the complexity of the case. Complexity, submits the Crown, can derive from either the nature of the evidence or the nature of the issues.

The Ontario Court of Appeal explained at paragraph [48] of R v Bulhosen, 2019 ONCA 600, that:

[48] Particularly complex cases are those where the nature of the evidence or the nature of the issues, or some combination of both, require an inordinate amount of trial or preparation time. The complexity of the case may also be impacted where there are multiple co-accused. The hallmarks of cases where the complexity arises from the nature of the evidence include:

• voluminous disclosure;
• a large number of witnesses;
• significant requirements for expert evidence; and
• charges covering a long period of time.

The Crown described evidence in this case in submissions as extraordinarily complex. The voluminous disclosure contains 330,000 files, including over 13,000 phone and electronic intercepts that constitute more than 275 hours of audio.

According to the affidavit evidence of Satish Tarachandra, the Deputy Director of the Criminal Intelligence Service of Ontario, it would take 11 days to listen to all that audio if one listened 24 hours a day continuously.

It was suggested by the affiant, Deputy Director Tarachandra, that it took the file coordinator 1,841 hours to review, apply redactions, and assemble the files logically to ensure accessibility for the parties.

Cross-examination revealed that this figure was supplied to the affiant by the file coordinator. The affiant did not disagree that if the file coordinator had worked continuously at this from July 1st, 2019, to April 23rd, 2020, this would have added up to 297 days, or 7,128 hours, far more than the impressive-sounding 1,841.

The affiant did not disagree that if the file coordinator had worked continuously at this from April 23rd, 2020, to November 1st, 2021, this would have added up to 557 days for a total of 13,368 hours, even more than the previous figure.

Other comparisons between the amount of hours available and the impressive-sounding 1,841 noted in the affidavit, one could not help but agree that the hours worked fell far short of those available.

The logical question then became what else was she doing; well, it seemed she had other duties, there was a lot going on. The Crown said that many times in submissions, there was a lot going on. And there was an assistant helping her at one point.

But the file coordinator advised the affiant that she did not need the assistant, which certainly appears evident to me, since there were many more hours available to work on all this redacting, assembling the files, logically preparing a summary with hyperlinks to ensure accessibility for the parties.

The affiant could not provide a detailed articulation of what the file coordinator's other duties were that she spent all those additional hours carrying out. He could not provide this detailed articulation, and that is understandable. Police and other public servants do not catalogue their time for billing purposes as do professionals in private practice.

The defence acknowledges at paragraph 267 of their combined factum that this case admittedly contains many hallmarks of a complex case. There is voluminous disclosure, a large number of police and civilian witnesses, various investigative avenues that were considered and attempted, numerous judicial authorizations that were sought and obtained, and it was a case that involved multiple accused.

However, say the defence in their factum, simply listing these features without elaboration can create a misleading impression. There is a need for context.

The factual framework of this case is actually relatively simple. There are not complicated legal issues to decide, nor is there novel law to create. Garofoli applications involving confidential informants, privilege claims, multiple grounds to cross-examine the affiant, and abuse of process claims routinely arise in the criminal courts, although not as frequently as bail and sentencing issues, or even 11(b)s, for that matter.

What did complicate time management in this case was the unforeseen in camera proceeding and request by the OPS for intervenor status because the defence chose to file an affidavit explaining police procedure regarding the recruitment and management of police informants.

Counsel for the OPS advocated strongly for a procedure that would have required the defence to make a third-party application for police records, all of the policy governing these procedures.

My view of it is that a third-party records application would have been no less complicated than the additional abuse of process application that has now arisen as a consequence of two parts of a related development in this case.

The first part is the defence decision not to bring the third-party records application that I would have expected him to; but instead, he filed his client's affidavit instead.

The second part of it is the astonishing reaction of the OPS Professional Standards Section and their decision to serve a notice on Mr. Assaad in the middle of cross-examination that they were commencing proceedings against him due to the content of his affidavit and his testimony.

This strategic decision taken by the defence coupled with the timing and manner in which the Professional Responsibilities Section communicated with Mr. Assaad in the middle of his cross-examination is a factor that has complicated this case.

It is not the complexity of the prosecution itself or the pre-trial motions. The actual pre-trial abuse of process motion itself that may follow this 11(b) is not in itself a complex one. I would not expect it to be time-consuming, and I expect that it could be scheduled before the trials, and not delay the trials.

The unvoluminous amount of evidence relevant to that application is already before the court. I do not foresee any disclosure requirement or requests for it in that application.

The law governing abuse of process is not complicated. The abuse of process issue that the OPS Professional Standards Committee's actions has created in this case is one that arises infrequently, and its very infrequency is a credit to the integrity of the actors in our criminal justice system.

If I hear the second abuse of process application, I will simply have to apply the well-known law to the unusual facts, and make a decision. It will not be particularly complicated or time-consuming. The fact that it is infrequent or unusual does not make it complicated or time-consuming. While the disclosure is...So that is the second abuse of process application that no one was expecting before the case started.

While the disclosure is large in this prosecution, it should not have been particularly difficult to disclose. Ms. Frouhar suggested that the Crown was not obligated to spend a large amount of time sorting, organizing, and categorizing this disclosure with a summary hyperlinked to the items. They could simply have provided a dump and let the defence sort it out. This is what in fact is done in other cases, and they were really doing all of this for themselves and the Crown, not for defence.

The defence submitted that once unsealed, the search warrants, the wiretap authorization, and production orders, and the corresponding material could be easily digitalized and vetted. Both parties agree that the initial disclosure would have taken a day to unload onto a hard drive.

What caused the delay was the manner in which the police and Crown triaged the disclosure. It did not relate to actual complexity. It was not a genuine plan to manage disclosure. It cannot be described as a plan that was not ideal, but nonetheless, it was still a plan which showed they were not complacent. There is more to it than that.

Both Ms. Frouhar and Mr. Addelman submitted that what they wanted at the outset were the ITOs, which they had requested on multiple occasions, and this is what delayed the schedule. These would have been much easier to provide, did not require cataloguing and hyperlinking, and it would have saved time at the outset, and speeded up the scheduling of JPTs and pre-trial applications.

The Crown does not dispute that the ITOs could have been provided before the rest of the voluminous disclosure, and with the 20/20 vision of hindsight, that would likely have been a better approach.

The Crown says that it does not reflect complacency that they gave priority to disclosing the other material first. They had a plan for managing and disclosing the material. A lot of things were going on simultaneously.

It was a huge operation with many moving parts. Because the accused were police officers, another police force in another jurisdiction had to be involved, and the communication and coordination was more complicated.

This accounts for why the five minutes it would have taken to fill out and provide the hapless Mr. Sablani with a screening form that would have allowed him to apply for Legal Aid instead of going around in circles was not provided.

One reasonable view of Mr. Sablani's experience is that it shows the complacency of the Crown. But the other equally reasonable view is that this happened because the matter was being prosecuted from Toronto, and both the communication and coordination were complicated.

Prosecutors from outside the jurisdiction were required because the defendants were police officers. Mr. Sablani's experience was the direct result of the complexity of the case.

Finding an out-of-town jurist for this case was the simplest part of all of those logistics because I was immediately available.

I agree with the defence that the factual framework for the case is not complex, nor would the volume of disclosure have been particularly difficult to disclose. It was the manner in which the police and the Crown chose to triage the disclosure that caused the delay.

It would also not have been difficult for the ITOs to have been unsealed or disclosed before rather than after the voluminous disclosure related to trial issues.

The evidence before me does not provide a satisfactory explanation for the delay in unsealing the ITOs.

I will now move on to other factors that the Crown characterizes as hallmarks of complexity.

One of these is the large number of witnesses. Over 40 witnesses may be required for the first trial and over 20 witnesses for the second. Another is the significant requirement for expert evidence.

The investigators obtained production orders for various bank accounts, including those belonging to United Ottawa Towing. Subsequently, accountants from Public Services and Procurement Canada's Forensic Accounting Management Group were retained.

They analyzed the data in two parts; first, the United Ottawa Towing accounts, which led to an expert report; and secondly, accounts of the charged officers, which led to another report.

Another factor listed by the Crown as contributing to the complexity of the case was that the charges covered a long period of time, a timespan of nearly two and a half years.

I agree that these factors add length to the proceedings, but not complexity. The criminal courts routinely consider and decide on the credibility of expert evidence. It does take some time to engage experts and for them to do their work, but this should not have added delay to the degree that it occurred.

I agree that the COVID pandemic did contribute to lack of communication and coordination in this case that already existed due to the necessity of involving a different police force, out-of-town police prosecutors, and a judge, but this should not have caused delay to the degree that occurred.

The number of cases processed through the courts was significantly reduced during the pandemic. Court duties for judges, Crowns, and officers that regularly appear in court on such matters as traffic were significantly reduced. I appreciate that we are not dealing with traffic police in this case, but this should have created more time for the Crown with less court duties to spend on vetting disclosure and advising police as to a more efficient disclosure plan.

It should have created more time for the Crown to attend to such matters as unsealing ITOs and filling out screening forms, even if they were prepared in another jurisdiction; how long does it take to fax a screening form that takes five minutes to fill out and that can be amended later, as they often are?

While I appreciate that the pandemic somewhat aggravated the communication and coordination difficulties that are attributable primarily to a different police force, and out-of-town police and Crowns responsible for investigating and prosecuting this case, I do not agree that it should have added delay to the degree that occurred, and I am not persuaded by the Crown's submissions that the backlog created by COVID should be held responsible for three months of delay, not in this case.

As Mr. Addelman so persuasively submitted, the backlog of cases simply meant that many cases piled up and had to be scheduled at once. Mr. Addelman was not available to schedule a date during the period from April 9th, 2021, when trial dates were initially set, until May 19th, 2021, when earlier dates were secured.

The Crown suggests that this 40 days should be subtracted from the overall delay. I do not agree. There is no evidence before this court as to which date would actually have been scheduled if Mr. Addelman had attended court on April 9th to set a date.

It is not unusual in our courts for dates to free up and become available after initial dates are set. This is why counsel sometimes are remanded to a date before a matter is set, in order to look for earlier dates. So I am not convinced that because Mr. Addelman waited only 40 days to set dates that there was delay. He took steps to reduce his commitments after that so that he could be available earlier. And then he did set dates.

I am not convinced by the Crown's submissions that the pandemic added complexity to these proceedings, nor am I convinced that in this case it was a discrete event. I see no link between the pandemic and the delay.

Proceeding jointly against multiple co-accused, resolutions discussions, reviewing the file, and dropping the case against some of the defendants, including the hapless, unrepresented Mr. Sablani, who remained unrepresented for so long due to actions of the Crown, did require major effort by the Crown, did ultimately benefit Mr. Sablani and others, and did ultimately simplify the case.

This is the only factor that added complexity to the case that I find convincing, and the Crown is to be commended for doing all it did in that regard.

Still, I do not find that these complicating factors justify the delay to the degree and extent that it occurred. I am not persuaded that the Crown acted to manage the complexity by implementing a disclosure plan, splitting the prosecution into streams, and dropping the number of accused.

The disclosure plan and splitting the prosecution into streams is precisely what has caused the majority of the delay in this case.

Other factors beyond the Crown's control that I have addressed above, plus matters such as Justice Keast's retirement may have caused minimal delay, but certainly not to the degree and extent that occurred in this case.

As far as Justice Keast's retirement is concerned, the Ottawa LAJ acted swiftly to minimize the impact on delay that this would cause.

For all of these reasons, I have been persuaded that there has been a violation of Section 11(b) of the Charter and I am staying the proceedings against Mr. Assaad and Mr. Ishraki.

...END OF EXCERPT AS REQUESTED

Certificate of Transcript

FORM 2 Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Robert Oates, certify that this document is a true and accurate transcript of the recording of R v Hussain Assaad and Jason Ishraki in the Ontario Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording Number 0411_CR11_20220329_090147__6_RAYS.dcr, which has been certified in Form 1. This certification does not apply to the ruling, which was judicially edited.

05 April 2022

(date) (signature of authorized person)

Robert Oates ACT ID: 1551994164 Tel. No: 1-855-443-2748 rob@actontario.ca