Ontario Court of Justice

Date: 2023 04 04 Court File No.: Toronto 21100714

Between:

THE ONTARIO MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT

— AND —

LIMEN GROUP CONST. (2019) LTD., OCTAVIO TOME, and EMANUEL TAVARES

Before: Justice Newton-Smith

Heard on: March 27, 28 and April 3, 2023 Reasons for Judgment released on: April 4, 2023

Counsel: W. Robinson, G. Adams......................................................... counsel for the prosecution N. Keith................................................... …. ... counsel for the defendants Limen Group, ...................................................................................... Octavio Tome and Emanuel Tavares

Ruling Re Additional Pre-Trial Motions

NEWTON-SMITH J.:

I. Overview

[1] This is a ruling with respect to the second set of pre-trial motions brought by the defendants Limen Group, Octavio Tome and Emanuel Tavares, all of whom are represented by Mr. Keith.

[2] The trial was scheduled to commence on March 27, 2023.

[3] Pre-trial motions were previously brought by the defendants represented by Mr. Keith alleging violations of section 7 and 11b and d of the Charter seeking a stay of proceedings and alternatively disclosure orders.

[4] Those motions occupied 5 days of court time.

[5] Included in those motions was a disclosure request for the entirety of the disciplinary file with respect to the former inspector Mr. Antongiovanni, who was originally assigned to investigate this matter.

[6] Reasons for judgment on those motions were released on March 7, 2023. I did not find any Charter violations and did not make any disclosure orders.

[7] As a result of these additional motions brought by Mr. Keith on behalf of his clients, the trial did not commence as scheduled on March 27.

[8] Mr. Keith again seeks a stay of proceedings for abuse of process, this time making claims of prosecutorial and investigative misconduct among other things.

[9] Alternatively he seeks an order recusing the prosecutors assigned to this case, various declarations of Charter violations and disclosure orders.

[10] Lastly, he sought an adjournment of the scheduled trial dates.

[11] At the conclusion of submissions on March 28, 2023, without ruling on the remainder of the motions, I granted Mr. Keith’s request for an adjournment of the trial until April 11, 2023.

[12] I granted the adjournment request because the defendants had received notice on March 14, 2023 that the former defendant Mr. Solc was now a crown witness, along with 4 other new potential witnesses. Despite the fact that the Crown offered not to call the new witnesses until later in the trial, Mr. Keith maintained that he was not, as a result of this new disclosure, prepared to proceed to trial the week of March 27. It was for this reason that I granted the adjournment request.

[13] The additional motions brought by Mr. Keith on March 27, 2023 are threefold.

Motion No.1

[14] Motion No.1 is essentially a disclosure request that relates to the Crown’s proposed expert Mr. Khorsand, an engineer with the Ontario Ministry of Labour. Contained in the Motion Record is a letter from Mr. Keith to the prosecutors which lists 54 disclosure request. During the course of submissions on the motion, the request was narrowed to 13 items.

Motion No.2

[15] Motion No.2 is also a disclosure request, this time with respect to the former defendant and now Crown witness Mr. Solc. The request is for any communications, agreements, records and documents between counsel for Mr. Solc and the Crown with respect to the Crown’s agreement to withdraw the charges against Mr. Solc.

Motion No.3

[16] Motion No.3 is an allegation of prosecutorial misconduct, which is itself twofold, and an allegation of investigative misconduct. The allegations of prosecutorial misconduct are firstly that the Crown knowingly, and with the intent of depriving the court of relevant case law, did not, during the course of the earlier motions, bring to my attention a decision of Justice Mocha of this court. The decision dealt in part with disclosure of an investigative report with respect to another investigator, unrelated to this case.

[17] Secondly, it is alleged that the Crown filed as part of its responding Motion Record on Motion No.2 statements of 5 potential Crown witnesses, including Mr. Solc, with the intention of prejudicing this Court against the defendants.

[18] The allegation of investigative misconduct is that the lead investigator in this case, Mr. Cook, intentionally or negligently, failed to secure from the police, and disclose to the Crown, a copy of Mr. Solc’s police statement made at the time of the incident. The statement was ultimately discovered and disclosed after Mr. Solc, through his counsel, provided a statement to the Crown this past March in which the earlier police statement was referenced.

The Remedies Sought

[19] It is the position of Mr. Keith for the defendants, that a stay of proceedings is warranted as a result of the combination of all three motions and on the basis of what Mr. Keith categorises as the “arrogance, negligence and indifference” of the prosecutors towards their disclosure obligations and a marked and unacceptable departure from conduct expected of the Crown.

[20] During the course of submissions on these motions Mr. Keith further took the position that should a stay not be granted the two prosecutors should be recused.

[21] As further alternative remedies he sought an order preventing the Crown from calling the 5 new witnesses, including Mr. Solc, declarations of violations of his clients Charter rights and disclosure orders.

II. Rulings

[22] At the conclusion of submissions I ruled that a stay was not warranted, nor was an order recusing the assigned prosecutors and nor was an order preventing the Crown from calling the 5 witnesses.

[23] These are my brief reasons and rulings with respect to the remaining disclosure requests.

Ruling Re Motion No.3

The Allegations of Prosecutorial Misconduct

[24] The allegations of prosecutorial misconduct are without merit.

[25] The decision of Justice Mocha which Mr. Keith alleges the Crown was obliged to put before me on the earlier motion is not binding authority. More importantly, other than the fact that it deals in small part with an investigative report relating to a Ministry inspector, there is no evidence before me, nor any suggestion made, that it is factually similar to the case before me. I have already ruled on the disclosure issue with respect to the investigation into Mr. Antongiovanni. Relevance is a key factor in any McNeil ruling. That an item of disclosure was ordered in another case is of little relevance to this case unless the cases are factually similar. I see nothing nefarious or negligent in the Crown’s failure to bring this case to my attention during the course of the previous motions.

[26] In responding to Motion No.2, which was a disclosure request with respect to the communications and exchange of information between counsel for Mr. Solc and the Crown, the Crown included in their materials the disclosure which was made to Mr. Keith in this regard. Included were the 5 impugned will-say statements. While I have not read them, Mr. Keith submits that these will-say statements contain assertions which are highly prejudicial to his clients and not relevant or admissible.

[27] The Crown is entitled to file in its responding materials documents which may be relevant to the application, whether or not those documents may be relevant or admissible at trial. Mr. Keith’s motion was a complaint about disclosure. The Crown responded by showing what had been disclosed. I do not find any malicious or nefarious intent on the part of the Crown in including these statements in their responding materials.

The Allegation of Investigative Misconduct

[28] With respect to the December 2020 police statement of Mr. Solc, it is clear that this should have formed part of the original disclosure in this case. For reasons that the Crown does not have an explanation for, the police did not turn this video statement over to Mr. Antongiovanni, the original investigator, when disclosure of the police investigative file was first sought by Mr. Antongiovanni. Nor was it disclosed by the police when Mr. Cook was assigned and followed up with the disclosure request.

[29] As Mr. Keith conceded during the course of submissions, Mr. Solc’s police statement was of little relevance to the defence while Mr. Solc was still a defendant in this matter. It was not until he became a Crown witness that the statement took on relevance as a potentially inconsistent prior statement.

[30] Once the Crown received Mr. Solc’s recent statement from his lawyer in which the earlier police statement was referenced, the Crown followed up with the police and finally received the statement which was in turn disclosed to the defendants.

[31] I have no basis from which to conclude that the police intentionally withheld the statement, nor is there any basis to conclude that the investigator intentionally or negligently played some role. The statement has now been disclosed and there has been no irreparable prejudice to the defendants in the late disclosure. There is no basis for a finding of investigative misconduct.

Ruling Re Motion No.2

[32] On the evening of March 13, 2023 the Crown received a will-say of Mr. Solc from his counsel. At the time Mr. Solc was a defendant in this matter. The following evening the Crown received from Mr. Solc’s counsel four further will-say statements.

[33] On March 14, 2023 the will-says of these 5 potential crown witnesses were all disclosed to the defence. At the same time the Crown, in the email to which the will-says were attached, disclosed that the charge against Mr. Solc would be withdrawn on March 27, 2023.

[34] The Crown has now withdrawn the charge against Mr. Solc and intends to call him as a witness.

[35] Mr. Keith, on behalf of the remaining defendants, seeks disclosure of:

all agreements, records, documents and communications between the Crown and counsel for John Solc with reference to the new Will Say of John Solc dated March 14, 2023, and other Will Say statements referenced in the Crown’s email, that were provided in exchange with an agreement with the Crown that ultimately resulted in the Crown’s agreement and commitment to withdraw the charge under the OHSA against John Solc.

[36] As part of its Stinchcombe disclosure obligations the Crown is required to disclose factual information that it receives from the person who is given immunity. This does not include “other information, such as legal opinions that may have been offered, or negotiations over the precise wording of the agreements, or views expressed over the relative importance of one thing or another”: R. v. Nestle Canada Inc, 2015 ONSC 810 at para 83.

[37] Mr. Keith concedes that he is not entitled to any opinions or negotiations between Mr. Solc and the Crown. However, he maintains that there is an “agreement” which should be disclosed. He also seeks disclosure of the date on which any negotiations between Mr. Solc and the Crown began.

[38] The Crown submits that no “agreement” was made with Mr. Solc and that there is nothing further to disclose.

[39] The Crown made a decision to withdraw the charge against Mr. Solc. It appears that the decision was made after receiving the statements from Mr. Solc’s counsel on March 13, 2023. Mr. Keith assumes the decision was made as a result of negotiations with Mr. Solc’s counsel and in exchange for the will-says received. The Crown says that there was no such agreement.

[40] Correspondence between Mr. Solc’s counsel and the Crown in which an offer was made and accepted, for example an offer to withdraw the charge in exchange for will-say statements, would be potentially relevant to Mr. Solc’s credibility as a witness and subject to Stinchcombe disclosure. If such correspondence exists it should be disclosed. However, as I understand the Crown’s submissions on this motion, there was no offer and acceptance and no agreement and no such correspondence exists to disclose.

Ruling Re Motion No.1

[41] Following receipt of the Crown’s notice of intention to call Mr. Khorsand as an expert witness at trial, Mr. Keith sent a 54 item disclosure request to the Crown. Motion No.1 is a disclosure application for all of the items requested that have not yet been disclosed. During the course of submissions the request was narrowed to 13 items.

[42] Most of the items requested are properly the subject of cross-examination and not a disclosure request. However, during the course of submissions I suggested to the Crown that attempting to respond to some of those requests may shorten the cross-examination at trial.

[43] I will refer to the items requested by the corresponding number in Mr. Keith’s February 27, 2023 letter to the Crown.

[44] The first five items all relate to Mr. Khorsand’s resume.

6. Proof of professional qualifications, education, and training that Mr. S. Khorsand, in which he represented he had membership, in his resume;

7. The transcripts of the Court proceedings in which Mr. S. Khorsand represented himself as an expert witness, and was accepted as an expert by the Court, to give expert opinion evidence, in his resume

8. The subject matter of purported expertise in the Court proceedings in which Mr. S. Khorsand represented himself as an expert witness, in his resume;

9. The position description/job description of Mr. S. Khorsand, at the time of the incident for which the charges relate, Engineering Consultant, in his resume;

10. The position description/job description of Mr. S. Khorsand, at the present time, Acting Provincial Engineer, in his resume

[45] Mr. Keith asserts that he has reason to believe that Mr. Khorsand may not have completed the course requirements for his Masters Degree. If this is the case, he can cross-examine Mr. Khorsand with respect to this issue. However, I am not prepared to make an order that Mr. Khorsand produce for Mr. Keith proof of all of his professional qualifications, education and training as requested.

[46] Transcripts of court proceedings are a matter of public record that can be ordered and paid for by the requesting counsel.

[47] Mr. Khorsand can be cross-examined with respect to any previous qualifications as an expert.

[48] Mr. Khorsand’s resume which contains his job descriptions has already been disclosed. Again this is something that he can be cross-examined on, subject to relevance.

13. Provide all copies of the draft “Forensic Engineering Report” (“Report”), dated September 27, 2021, prepared by Mr. S. Khorsand;

[49] I am advised by the Crown that Mr. Keith has already been provided with all of Mr. Khorsand’s notes and work product, including correspondence between Mr. Khorsand and Mr. Jeffreys who peer-reviewed Mr. Khorsand’s report. That correspondence which forms part of the Crown’s responding materials on this application, contains track change comments that Mr. Jeffreys made with respect to the report.

[50] Mr. Keith’s request goes further and asks for copies of all previous drafts. Any existing copies of previous drafts should be disclosed. However, I am advised by the Crown that copies of previous drafts do not exist.

[51] Given that Mr. Keith is already in receipt of the correspondence which led to changes being made, it appears that the disclosure obligations have been satisfied. Mr. Keith can cross-examine Mr. Khorsand with respect to his writing process and how and why he made changes to his report.

16. Proof of the request by Mr. Matthew Antongiovanni (“Lead Investigator” of “Mr. M. Antongiovanni”) for assistance by Mr. S. Khorsand, in the investigation in this case;

[52] I am advised by the Crown that Mr. Keith is already in receipt of all of the correspondence between Mr. Khorsand and Mr. Antongiovanni.

23. The identification of all hearsay evidence, including all sources, sub-sources, and assumptions that form the basis of the ‘facts’ set out in the Report of Mr. S. Khorsand and upon which, directly or indirectly, the various opinions set out in that Report are based

[53] Mr. Khorsand’s report, which is contained in the Crown’s materials from the previous motion, references all of his sources. He can be cross-examined with respect to his reliance on sources, any assumptions he made and how he formed his opinions.

27. To provide the meta data of all photos and videos identified, used, manipulated, changes, altered that are included and embedded in the Report;

28. Since our forensic expert has advised us that the video provided in Crown disclosure is a very low quality and cannot be enhanced, a high quality of the video used by Mr. S. Khorsand in this case, to provide a high resolution of the video(s);

[54] The Crown has already offered to assist Mr. Keith with respect to accessing the meta data, an offer to which Mr. Keith did not respond. The Crown’s offer to assist Mr. Keith, or his expert, with respect to accessing the meta data still stands. Mr. Keith and/or his expert can avail themselves of this offer.

[55] 30. The form of forensic engineer and/or technical testing of one the ‘end hooks’ of one of the ‘chain slings’ that led to the opinion of Mr. S. Khorsand was ‘defective’, as indicated on page 10 of the Report;

[56] How Mr. Khorsand came to form his opinion is a matter for cross-examination.

41. The basis and expertise of Mr. S. Khorsand to provide a legal assessment and opinion, as an engineering employee of the Ministry, relating to this case, as referenced in page 14 of the Report;

[57] This is a matter for submissions and not properly a disclosure request.

45. A typed, legible copy of the notes from only December 15, 2020, December 22, 2020, and September 14, 2021, and for any other notes have as of yet not disclosed;

[58] Mr. Keith has now received a typed copy of the notes requested.

III. Conclusion

[59] The trial is now scheduled to commence on April 11, 2023. I expect all parties to be prepared to proceed to trial at that time.

Released: April 4, 2023 Signed: Justice Newton-Smith