ONTARIO COURT OF JUSTICE

CITATION: R. v. Siddiqui, 2022 ONCJ 62

DATE: February 15, 2022

Toronto, ON

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Aafaq SIDDIQUI and Keenan KAWALL

Ruling on Adjournment Application Due to Missing Disclosure

Before Justice B. Jones

Heard on February 15, 2022

Reasons for Judgment released on February 15, 2022

D. Hogan............................................................................................... counsel for the Crown

R. Sansanwal………………………………………………………………….for A. Siddiqui

R. Moriah……………………………………………………………………….…for K. Kawall

Jones J.:

Introduction

[1] Mr. Siddiqui and Mr. Kawall are charged with a variety of offences including robbery, aggravated assault, and assault with a weapon arising out of events that occurred on September 27, 2020. Mr. Kawall is also charged with attempted murder. The Crown is proceeding by indictment and the defence elected to have a trial in the Ontario Court of Justice. That trial was set to commence on February 14, 2022 before me for 5 days.

[2] On February 14, both parties requested the matter be adjourned to today’s date to review some disclosure that had just recently been provided to the defence by the Crown. The expectation was that the trial might be able to start today. I granted that adjournment.

[3] Today, counsel for both Mr. Kawall and Mr. Siddiqui seek a further adjournment of the trial due to disclosure that remains outstanding. The Crown wishes to at least begin the trial today and has made efforts to obtain the outstanding disclosure. A review of the allegations and anticipated evidence in this case is necessary to determine how the adjournment request should be decided.

Overview Of The Case For The Crown

[4] Mr. Hogan provided the court with a detailed overview of the expected evidence for the Crown today if the trial should commence.

[5] On September 27, 2020, the complainant was robbed and assaulted by two persons in Thorncliffe Park, which is part of East York in Toronto. The incident occurred near the East York Town Centre located at 45 Overlea Boulevard. A 911 call was made and the police attended the scene of the crime and commenced their investigation.

[6] The lead investigator was DC Janjanin. The complainant only provided a brief utterance. The suspects were not initially identified. DC Janjanin was able to review video of the incident which was not of a high quality, taken approximately 50 feet from where the assault occurred. This video only provided some indication of what had occurred. The suspects could not be readily identified from it.

[7] DC Janjanin spoke to PC Espino, who is a community resource officer familiar with the area. PC Espino had regular contact with members of the community in this part of the city. When he reviewed the video, he identified Mr. Siddiqui as one of the suspects. He had prior experiences with Mr. Siddiqui. He informed DC Janjanin there were other video cameras located in the area that might provide higher quality video recordings of the incident.

[8] Through his subsequent investigation, DC Janjanin identified more video of both the incident itself, and of the suspects travelling in and around the area including through a mall that is located nearby. The Crown anticipates producing all of this video evidence at the trial as part of its case identifying the accused parties as the perpetrators of these offences.

[9] PC Espino reviewed these other videos on September 28, 2020 and ultimately formed the opinion that the second suspect was a person he had some prior interactions with as well. He believed he had seen this second suspect – now alleged by the Crown to be Mr. Kawall – approximately two weeks prior on September 5, 2020, and had in fact taken a picture of him at that time. Comparing the photograph taken and the video files to each other, both officers were satisfied the second suspect was the person PC Espino had encountered on this earlier date.

[10] A warrant was issued for the arrest of Mr. Siddiqui. The photographs taken by PC Espino on September 5, 2020 and a single still image from the video surveillance footage linked this investigation were sent to Officer Venerri of the Toronto Police Service who specializes in facial recognition software. Mr. Kawall was identified by this process as the potential second suspect. A warrant was sought and obtained for Mr. Kawall’s residence. It was executed on October 5, 2020, and items obtained from Mr. Kawall’s residence will form part of the case for the Crown. The Crown alleges these items may help “shore up” the identification of Mr. Kawall as the second suspect in the video of the incident itself.

[11] The Crown takes the position that the facial recognition software and the results it created are not admissible on the trial proper to actually prove that Mr. Kawall is one of the suspects. Rather, that evidence is simply part of the narrative of the police investigation. It is accepted by both parties however that part of the grounds for the information to obtain a search warrant did depend on the facial recognition software results.

Outstanding Disclosure

[12] Officer Venerri has produced part of the investigative file related to the use of the facial recognition software in this case. However, some parts do remain outstanding. For the purposes of this application, they can be summarized as how the “results” from the software are generated. One of the pages provided to defence counsel was partially redacted when the disclosure was first provided by the Crown’s office. The Crown is now diligently following up with the officers to determine what remains outstanding and hopes to provide it this week. The main concern from the position of Mr. Moriah is whether or not multiple results may have been generated by the software – that is, were other possible persons identified as possibly being the person in the video other than Mr. Kawall? If so, this might support an application to challenge the sufficiency of the grounds for the search warrant of Mr. Kawall’s residence. The Crown does not dispute this could be possible, although without having the disclosure materials in question it is not possible for Mr. Moriah to make this determination.

[13] With respect PC Espino, the Crown intends to produce him as a potential Leaney witness at the trial. Mr. Sansanwal has requested the officer’s memo book notes relating to his prior interactions with his client. He wishes to have that evidence so he can properly cross-examine the officer and challenge the strength of the witness’ identification of his client as one of the suspects in the video.

[14] Mr. Hogan anticipates providing the facial recognition software missing disclosure later this week and the notes of PC Espino by Thursday.

Test For An Adjournment

[15] Section 571 of the Criminal Code permits a provincial court judge acting under Part XIX to adjourn a trial “from time to time until the trial is finally terminated.”

[16] Where a party to a criminal proceeding seeks an adjournment, two important considerations must be balanced:

(1) the fair trial interests of the accused, including his right to make full answer and defence; and

(2) the court’s obligation to control the trial process.

See R. v. Hinds, 2015 ONSC 5210 at para. 25; R. v. Hazout, 2005 CanLII 30050 (ON CA) at para. 31, leave to appeal refused [2005] S.C.C.A. No. 501; R. v. Nichols, 2001 CanLII 5680 (ON CA) at para. 23, leave to appeal refused [2001] S.C.C.A. No. 508; R. v. McCallen, 1999 CanLII 3685 (ON CA) at paras. 45-47.

[17] The onus is on the party bringing the application “to establish the grounds for the adjournment”: R. v. T.S., 2019 ONSC 5226 at para. 32.

[18] A decision to grant or deny an adjournment involves the exercise of judicial discretion. It requires consideration of all of the circumstances in the case to determine what is in the best interests of the administration of justice: R. v. Ke, 2021 ONCA 179 at para. 57.

[19] An adjournment application is not a trial, and the strict rules of evidence do not apply: R. v. Baez, 2014 ONCJ 484 at para. 8. It is in fact commonplace for judges to rely upon hearsay information when deciding adjournment applications: R. c. McKenzie-Fletcher, 2020 QCCQ 2367 at para. 36.

[20] I have thus relied upon the submissions of counsel to obtain an understanding of the nature of this case, the evidence for the Crown, the significance of the outstanding disclosure, and the potential prejudice to the defence of both accused persons if the trial proceeds without that material being provided.

[21] Protecting the trial process considers both the accused’s and the public’s interest in having a criminal case disposed of on its merits in an expeditious and efficient manner. It also considers the importance of ensuring the integrity of the administration of justice: see R. v. Hinds at paras. 25 and 28; R. v. McCallen, supra at para. 46.

[22] There is no exhaustive list of factors to consider when determining whether to grant or refuse an adjournment: see R. v. Ke, supra, at para. 52. Prior jurisprudence establishes that factors to balance when considering a request for an adjournment include:

• The reasonableness and timeliness of the request;

• The grounds for the request;

• The gravity of the charges;

• The number of prior adjournments, if any; and

• The prejudice that might arise to either party as a result of an adjournment or a refusal to adjourn.

[23] In R. v. Cunningham, 2010 SCC 10 at para. 51 the Supreme Court of Canada recognized at that harm to the administration of justice considers all of the parties affected by trial delays:

“Harm to the administration of justice is not simply administrative inconvenience as the interveners suggest. Harm to the administration of justice recognizes that there are other persons affected by ongoing and prolonged criminal proceedings: complainants, witnesses, jurors and society at large…”

Analysis

[24] The outstanding disclosure items are clearly relevant. For Mr. Kawall the missing details from the facial recognition software analysis do not directly impact on the case for the Crown since the Crown does not intend to rely upon the results of that software analysis to implicate Mr. Kawall on the trial proper. However, the Crown does intend to lead evidence from the search of Mr. Kawall’s home to assist in proving the case against him. In that regard, Mr. Moriah’s position that obtaining this material is necessary to help him determine if he will challenge the information to obtain the search warrant is entirely reasonable and well-founded.

[25] Some discussion took place today that a potential search warrant challenge was not contemplated at the judicial pre-trial for this case. That does not change the relevance of this outstanding material. My concern today is with whether or not counsel requires this material to properly and effectively defend his client. I agree that he does. Whether or not he ultimately brings a Charter application related to the search warrant, he is entitled to know the entirety of the information that the affiant (DC Janjanin) had at his disposal at the time he provided sworn evidence in support of the information to obtain: see R. v. Garofoli, 1990 CanLII 52 (SCC) and its progeny. The Supreme Court of Canada emphasized in R. v. Morelli 2010 SCC 8 at para. 49 the importance of an “informant’s duty to make full and frank disclosure of all material information” in an information to obtain a judicial authorization.[^1] Disclosure of this missing information related to the results of the facial recognition software analysis could therefore be relevant in a possible sub-facial challenge to the validity of the search warrant: R. v. Araujo, 2000 SCC 65 at para. 57.

[26] For Mr. Siddiqui, the outstanding notes of PC Espino constitute first-party disclosure and the Crown is obligated to produce them. A Leaney application addresses the admissibility of non-expert opinion evidence of a witness who, as a result of their familiarity with an accused, is relied upon to review images or videos of a suspect and provide recognition evidence. The extent to which the proposed witness is familiar with the accused is a central feature of the application: R. v. Berhe, 2012 ONCA 716 at para. 20 and 21; R. v. Field 2018 BCCA 253, aff’d 2019 CanLII 413 (SCC); R. v. Hudson, 2020 ONCA 507 at paras. 28-30.

[27] This evidence is only admissible where

a) it is shown that the proposed witness has a prior acquaintance with the target individual and,

b) is in a better position than the trier of fact would be in identifying the individual.

[28] Mr. Sansanwal should have all the required supporting material to mount an effective challenge to the officer’s opinion evidence that his client is one of the suspects in the video. The Crown has informed me PC Espino’s notes are available and he does intend to produce them.

[29] That being said, given the timeline with which the anticipated disclosure is set to be provided, I find that this trial may start today with the evidence of DC Janjanin and continue with the evidence of the complainant. Following their evidence, which is expected to conclude tomorrow, I have informed counsel that I will grant any request to have DC Janjanin recalled as a witness if further cross-examination is required once the missing facial recognition software disclosure is obtained. Mr. Moriah submits that since Dc Janjanin’s discussions with Officer Venerri may turn on what was revealed in this information and since that may in turn affect what was provided in the information to obtain the search warrant, further cross-examination may be required at a later date once he has had the opportunity to review the material. I agree.

[30] PC Espino will not be called as a witness until all of his relevant prior memo book notes have been provided and reviewed by Mr. Sansanwal.

[31] The trial will commence given the great importance in having matters heard on their merits as reasonably quickly as possible, while recognizing the importance of the fair trial rights of the accused: see R. v. Jordan 2016 SCC 27 and R. v. Cunningham, supra.

Written Reasons Released: February 15, 2022

Signed: Justice Brock Jones

[^1]: I am informed by counsel this was a search warrant of Mr. Kawall’s residence issued pursuant to Criminal Code s. 487.