SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ALI AMIRI
PROCEEDINGS
BEFORE THE HONOURABLE JUSTICE M. FUERST
On December 17, 2012, at NEWMARKET, Ontario
APPEARANCES:
C. Elmasry Counsel for the Crown
M. Montemurro Counsel for the Crown
Ali Amiri In Person
TABLE OF CONTENTS
Page
Crown Submissions 6
Defence Submissions 13
Ruling 16
Transcript Ordered: March 01, 2016
Transcript Completed: March 24, 2016
Ordering Party Notified: March 24, 2016
MONDAY, DECEMBER 17, 2012
THE COURT: All right. Now, the next matter is the Almiri [sic] matter.
MS. ELMASRY: And nobody’s attended on that matter. If we can...
THE COURT: All right. Could we page Mr. Almiri and can I see that file, please?
CLERK REGISTRAR: Ali Amiri, please attend inside courtroom 402, Ali Amiri, please attend inside courtroom 402.
...WHEREUPON OTHER MATTERS ARE SPOKEN TO
THE COURT: So going back to the Amiri matter. This clearly was put over. Mr. Amiri was present on December 3 rd when I put it over to today at 9:30 a.m. to continue his certiorari application. He was paged at 9:50 a.m. It’s now 9:55 a.m. and neither he nor anyone on his behalf has attended. So in the circumstances I propose to endorse this as abandoned, dismissed as abandoned unless you’ve heard from Mr...
MS. ELMASRY: I have, I have not and I did speak to Ms. Montemurro this morning at nine. I haven’t spoken to her since and she hadn’t received any thing. I understand there was a transcript order...
THE COURT: Yes.
MS. ELMASRY: ...and that had been received.
THE COURT: Okay.
MS. ELMASRY: But she had received any messages from Mr. Amiri.
...WHEREUPON OTHER MATTERS ARE SPOKEN TO
THE COURT: All right then. On the Amiri matter I’ve endorsed as follows: No one attends on behalf of the applicant, although he is paged at 9:50 a.m. It is now 10:00 a.m. Mr. Amiri was present on December 3 rd when I adjourned the matter to today. Crown counsel has not heard from him. In light of his non-attendance today, the application is dismissed as abandoned.
MS. ELMASRY: Thank you.
THE COURT: If there had been some communication that he was delayed or late, I might be prepared to hold it down even though we’ve got nothing else on the list but...
MS. ELMASRY: I mean, I can check and let the trial co-ordinator know if something happened between me coming – I was up here at 9:20 and nobody called from my office to say there was some urgent message so I’m assuming there was nothing received but in an abundance of caution I’ll just check and then...
THE COURT: All right because certainly the trial co-ordinator hasn’t advised me that he communicated with the trial co-ordinator’s office that he was going to be delayed for any reason. And as I say, he was here on the last date when I put it to today and, in fact, I’m actually not supposed to be sitting today but I wanted to...
MS. ELMASRY: Yes.
THE COURT: ...try to clean up some of these matters that I viewed myself as seized with so I’m not in a position where I can simply wait and wait and wait in case something happens.
MS. ELMASRY: Okay.
THE COURT: So if you get down to your office and you find out there’s a message from him, then I’ll ask our staff to stand by for about the next 10 minutes or so...
MS. ELMASRY: Okay, I’ll go check right away.
THE COURT: ...but otherwise I think that’s it.
MS. ELMASRY: Thank you very much.
THE COURT: So if you don't mind if I could ask...
MS. ELMASRY: No, I will go right away.
THE COURT: ...staff just to...
CLERK REGISTRAR: Few minutes, Your Honour.
THE COURT: ...stand by for 10 minutes. And maybe can you phone Madam Registrar if you don't...
CLERK REGISTRAR: Yes.
THE COURT: ...have any messages and advise?
CLERK REGISTRAR: I’ll phone either way.
THE COURT: All right. Thank you.
...WHEREUPON OTHER MATTERS ARE SPOKEN TO
MS. MONTEMURRO: Good morning, Your Honour. Thank you for the indulgence. I have another matter in Provincial Court this morning.
THE COURT: Yes. So where we left off last day was I, essentially, had heard Mr. Amiri’s submissions and I think, Ms. Montemurro, as you rose to begin your submissions, I had suggested getting the transcript of the earlier appearance before Justice Armstrong I case it shed any light on...
MS. MONTEMURRO: Yes, and I...
THE COURT: ...what was happening.
MS. MONTEMURRO: ...received that. I’m not sure if Mr. Amiri did.
ALI AMIRI: Yes, I did.
MS. MONTEMURRO: Okay. Your Honour also on the last day provided a case to both of us, Papa Griorgio .
THE COURT: Yes.
MS. MONTEMURRO: And I know that Mr. Amiri wants to make submissions on that. He’s actually provided me with two cases just now with respect to that issue. I haven’t had a chance to read them, obviously but...
THE COURT: All right. Well, in any, in any event now that I’ve had a chance to read more thoroughly all of the transcripts, let me try to direct you to my area of concern.
MS. MONTEMURRO: Yes.
THE COURT: Leaving aside whether or not Justice Armstrong had jurisdiction to make an order...
MS. MONTEMURRO: Yes.
THE COURT: ...and I appreciate that sometimes things are done in the Ontario Court for the purpose of efficiency, just as they are in the Superior Court but leaving aside that...
MS. MONTEMURRO: Yes.
THE COURT: ...issue...
MS. MONTEMURRO: Yes.
THE COURT: ...seems to me that on November the 12 th , Justice Minard made his own order and...
MS. MONTEMURRO: October 12 th .
THE COURT: October 12 th , sorry...
MS. MONTEMURRO: Yes.
THE COURT: ...in his capacity as the trial judge.
MS. MONTEMURRO: Yes.
THE COURT: One of the issues that Mr. Amiri has raised with me is that he asked for an opportunity to cross-examine on the affidavit...
MS. MONTEMURRO: Yes.
THE COURT: ...that had been provided by Crown counsel in support...
MS. MONTEMURRO: Yes.
THE COURT: ...and that he wasn’t given an opportunity to cross-examine. And having looked at Justice Minard’s reasons, it seems to me that he really didn’t address that request so the issue, as I see it, is whether that amounts to a denial of natural justice.
MS. MONTEMURRO: And I do...
THE COURT: I, I, I have to, I have to say, in the context of matters that are brought before the trial judge, generally speaking, the, the route to a remedy would be by way of an appeal but given that this seems to be occurring at the outset of the proceedings, I think I have to ask for your submissions as to whether or not there’s a denial of natural justice because of Justice Minard’s – I, I wanna use this word in a non-judgmental way, failure to address that request by Mr. Amiri.
MS. MONTEMURRO: I have submissions on that...
THE COURT: So, can, can I ask you...
MS. MONTEMURRO: ...I can focus...
THE COURT: ...to...
MS. MONTEMURRO: Yeah.
THE COURT: ...turn to that issue first?
MS. MONTEMURRO: And in dealing with that, I just did want to raise what happened on the two prior occasions...
THE COURT: Yes.
MS. MONTEMURRO: ...just because I think that’s of significance. As Your Honour knows, by way of the transcripts that have been provided, the issue of the Crown raising the 486.3 order was brought to the court and to Mr. Amiri’s attention back in March during the judicial pretrial. I understand that the matter was first up on August 3 rd so that the Crown could proceed with the application. The main issue on that day was that Mr. Amiri had not received proper notice of the application. But on August 22 nd the matter was argued. Both the Crown and Mr. Amiri provided both oral and written submissions.
THE COURT: Sorry, for the August...
MS. MONTEMURRO: On August 22 nd .
THE COURT: Twenty-second day?
MS. MONTEMURRO: Yes, so the Crown obviously made its application in writing. Mr. Amiri responded to that application in writing. His materials are in the materials that I filed on this application. In addition to those written materials that he submitted, as you can tell on August 22 nd he made oral submissions. His argument was that the matter or that the order should not be made. At no time during the written or oral submissions did he make this request to cross-examine the affiant. On October 12 th ...
THE COURT: Sorry, just let me catch up.
MS. MONTEMURRO: Sure.
THE COURT: Yes.
MS. MONTEMURRO: On October the 12 th the trial was to commence and at the begin – at the outset Mr. Amiri took the position that the order that was made on August 22 nd by Justice Armstrong was not binding and argued that there was a lack of jurisdiction and then the matter came here. Although brief, he did have an opportunity to make some submissions on the October 12 th date before Justice Minard. And as we determined on the last day, he did make the request to cross-examine the affiant at the end of his submissions. I think it’s at page 14 of the October 12 th transcript.
THE COURT: Yes.
MS. MONTEMURRO: Now, when Mr. Amiri raised the issue that this order was not binding, the Crown was taken by surprise and there was no notice that he was going to be challenging that. As Your Honour can gleam from the materials, I renewed the application given what I had heard. The application that the Crown filed, in my respectful submission, had some errors to it. The application was for an order to be made under two different sections.
THE COURT: Sorry, can you just take me to the...
MS. MONTEMURRO: Sure.
THE COURT: ...the paperwork?
MS. MONTEMURRO: Sure. I believe Mr. Amiri provided copies of the Crown application on the last day. And it was entered on these proceedings. He just provided a copy of it. It wasn’t in any of the materials that were bound.
THE COURT: Well this is part of the problem when these applications are dealt with in, you know, bits and pieces with people just passing things up but I’ve got something here..
MS. MONTEMURRO: And here...
THE COURT: ...that looks like it’s photocopied from a bound volume...
MS. MONTEMURRO: Yes.
THE COURT: ...and it, it says notice of application and the last, stapled together, the last page looks like it’s, the last page of Mr. Ventola’s affidavit. Is that...
MS. MONTEMURRO: That’s what I’m referring to.
THE COURT: All right.
MS. MONTEMURRO: So the Crown’s notice of application was in relation to s. 486.3(2) and 486.3(4). In my respectful submission that was done in error. This application should be solely under the section, 486.3(4). The reason being, if we look at the Code , that’s the section that applies in the circumstances of this specific case because Mr. Amiri is charged with criminal harassment. The other section, subsection 2 applies in other cases where there is a young witness or by virtue of the, the nature of the charges, not charges of criminal harassment.
THE COURT: Right.
MS. MONTEMURRO: This affidavit that’s attached, in my respectful submission, the purpose of the affidavit is in response to the Crown’s application under subsection 2 because when an application is brought under that section, the court has to look at various factors that are set out in the Criminal Code with respect to whether or not the application should be granted. And that subsection is...
THE COURT: Right. It’s a mandatory subsection with some ability on the part of the respondent to show why it shouldn’t be made but it – on the face of it, it’s a mandatory application.
MS. MONTEMURRO: Yes, but subsection 2 is not.
THE COURT: Right.
MS. MONTEMURRO: It’s a different onus and so the, the affidavit, in my respectful submission is provided in support of the Crown’s application under subsection 2 and not under subsection 4.
THE COURT: Well, unfortunately, it doesn’t make that very clear, the, the affidavit. I’m not faulting you or anybody else...
MS. MONTEMURRO: I appreciate that.
THE COURT: ...I’m just observing. It doesn’t make that particularly clear and you’re, you’re dealing with an individual who’s representing himself. If it were counsel, one might well be able to say, “Look, just ignore this. It doesn’t really relate to what’s – to the nub of the Crown’s application” but when you’re dealing with somebody who’s self-represented, it seems to me the Crown has to dot its I’s and cross its T’s so to, so to speak in making an application.
MS. MONTEMURRO: The affidavit doesn’t refer to that specifically but in the Crown’s notice of application under the grounds section, does refer at paragraph 5 that in considering an order under subsection 2, the Crown – sorry, the court should take into account all the factors referred to in subsection 3 and then it lists the factors. So as I said, this application was done, I would submit, in error. It’s not the application that should have properly been before the court. But in any event, on August 22 nd , when this was before the court and when Mr. Amiri responded, Justice Armstrong did tell him that the application was under subsection 4 and not under subsection 3. So I, I do agree that when Mr. Amiri asked on October 12 th to cross-examine the, the affiant, Mr. Ventola, Justice Minard did not give him that opportunity, did not give reasons as to why he did not give him that opportunity but looking at, at the, the request, in my respectful submission, because the Crown’s application – the Crown – the application I brought to renew on October 12 th was solely in regards to subsection 4, which is the mandatory order, even if Mr. Amiri were granted the opportunity to cross-examine the affiant it would not, in my respectful submission, had had an effect on the outcome. Mr. Ventola is – was an articling student at the time. He’s no longer with the Crown’s office and to, to first of all, to get him here would, would take some time. Secondly, in my respectful submission, the outcome of that, I don't think, would have any bearing on whether or not the order was made. Mr. Ventola simply read the synopsis and prepared the affidavit. He would’ve had no contact whatsoever with the complainant in the matter.
THE COURT: Well, but I, I don't know what Mr. Amiri might have asked him about, for example, things that are contained in the disclosure material that Mr. Ventola reviewed that Mr. Amiri might view as assisting him in, in showing why the proper administration of justice requires him to personally cross-examine. That, that’s the problem I’m faced with.
MS. MONTEMURRO: And I understand that. I don't have anything further that I can add to assist.
THE COURT: All right. So that, that is that. Now on the disclosure point...
MS. MONTEMURRO: Yes.
MS. MONTEMURRO: ...now that I’ve had a chance to, I was perhaps more focused on the 486.3 order on the last occasion then on the disclosure request but...
MS. MONTEMURRO: Yes.
THE COURT: ...seems to me that Justice Minard dealt with the disclosure request.
MS. MONTEMURRO: He did.
THE COURT: At page 25 and following of the transcript.
MS. MONTEMURRO: Yeah. And now that we have the benefit of the transcripts from August 3 rd and 22 nd that pre-date the October 12 th transcripts, quite clear, in my respectful submission, that on August 3 rd the Crown provided Mr. Amiri with a transcript of both his statement and the complainant’s statement. The Crown also indicated on the record that Mr. Amiri could attend the Crown’s office at any time of his choosing to review the DVD statement of the complainant. The Crown also advised that once counsel was appointed pursuant to s. 486(3) , Mr. Amiri would’ve had the opportunity, of course, to view the statement with that counsel. Mr. Starer was appointed and was in court on the August 22 nd date. He was provided with full disclosure including the DVD statement. Mr. Amiri has chose not to attend the Crown’s office, has never made a request to view the statement through our office. He has not watched the statement with Mr. Starer because his position is that Mr. Starer was appointed without jurisdiction. So based on what I understand, Mr. Amiri’s never viewed that statement, despite our attempts and our efforts to have that happen. But, again, as you can tell from the August 3 rd date, he does have the transcript. So I don't have any further submission on that.
THE COURT: All right. All right. Thank you. So, Mr. Amiri, I’ll give you a brief opportunity to reply, since I did hear your submission on the last date and you’ve heard what I’ve said to Miss Montemurro about my areas of concern, so to speak, so I’m gonna ask you to address your reply to those issues, please.
ALI AMIRI: Your Honour, Madam Crown was actually – she was very direct and straightforward about, about the how Mr. Starer was appointed as counsel. I mean, I don't have anything – a lot further to say just, Your Honour, on application before Justice Armstrong, my written material clearly shows, before the court Your Honour, that I did say Justice Armstrong ruling is not binding as he’s not the, he’s not been assigned as the trial judge, neither he was appointed as the case management judge under, I believe, it’s s. 540 or 530 of the Criminal Code , correct me if I’m wrong, Your Honour. So apparently Justice Armstrong had no jurisdiction to make that ruling, that is quite clear, and the transcript reveals nothing was mentioned about he being as the case management judge so his ruling was not binding. And, Your Honour, the transcripts before Justice Armstrong also clearly, clearly reveals for the record that I did, I did, I did indicate to the Crown that their application is premature and it must be brought before the trial judge and they didn’t even bring an application before the trial judge. The – just an exhausted application was renewed before Justice Minard. And clearly, Your Honour, I wasn’t given an opportunity to cross-examine the affiant. Moving forward, Your Honour, with relation to the disclosure, the case which you gave me last time about Papa Griorgio, on that case, Your Honour, that’s not a Charter case. The Court of Appeal ruled that the Crown’s conduct was appropriate by not giving the DVD statement to the accused but also the Court of Appeal indicated on that case when a Charter application is filed, the, the trial judge must be guided on principle and, Your Honour, I did – my application record clearly shows a Charter application before the court before Justice Minard and a Crown, they did not file a response. They did not file a response indicating as to how they – the DVD is privileged or how are they bringing themself with an exception to that rule for withholding disclosure. Nothing was filed on the face of the record. Your Honour, wants – there are other cases under Papa Griorgio , Your Honour, where the Crown has disclosed the DVD and also by adding an – an undertaking to the accused, such as, well, not to distribute the video in any sense whatsoever so in – by any means online or anything like that. So, Your Honour, I did provide that case to Madam Crown. There is a case of Ian, Ian Florine – Flora [sic] where, Your Honour, the DVD and all the disclosure was given to the accused person but there be conditions of undertaking. And in case, Your Honour, the Crown did not make any efforts whatsoever. They did not make a proper response. They didn’t, they didn’t do anything, Your Honour. Nothing was done appropriately in my case, Your Honour. And there’s a clearly a – their conduct is clearly in breach of the rules of natural justice, Your Honour. I have the right to make a response and have the right to have disclosure and they should have been more diligent. And in that light, Your Honour, I’m asking you to quash the ruling of Justice Armstrong, Justice Minard for the appointment, both of them, and as well as remit the disclosure application before the trial judge so a ruling can be made based on the proper submission by the Crown, ‘cause there was nothing on the face of the record to dismiss a disclosure application. The Crown is not bringing themself with an exception to that rule, Your Honour.
THE COURT: All right. I’m going to take a recess. We’ll reconvene at 11 o’clock and I’ll give you my decision at that time.
MS. MONTEMURRO: I may have Ms. Elmasry...
THE COURT: Sure.
MS. MONTEMURRO: ...take that just because I need to be in another court. Thank you.
THE COURT: I understand. That’s fine. So 11 o’clock, please. Thank you.
R E C E S S
U P O N R E S U M I N G:
R U L I N G
FUERST, J (Orally)
I have made the following endorsement, which is on the Notice of Certiorari Application: Two issues are raised before me. The first concerns the basis for the s. 486.3(4) order. I appreciate that for reasons of trial efficiency, these applications are often brought before a judge other than the trial judge and then simply confirmed by the trial judge at the outset of trial. In this case, however, Mr. Amiri did not consent to the order being made at all and specifically took the position that Justice Armstrong had no jurisdiction to make the order, as he was not the trial judge. Crown counsel concedes that Justice Armstrong was not the trial judge. The materials before me, unfortunately, do not indicate that he was acting in the capacity of a case management judge under s. 551.3 when he made the order.
I agree with the applicant that in the circumstances of this case, the order was not binding on the trial judge. However, the applicant raised the issue with the trial judge, and in response Crown counsel renewed the application. The applicant had had the written materials for months and had made submissions in response in August, so cannot be said to have been prejudiced by the renewal of the application. However, he did ask for an opportunity to cross-examine the affiant on the affidavit filed in support. The trial judge did not address this request before making his ruling. The denial of an opportunity to cross-examine on an affidavit filed by the Crown is a denial of natural justice that grounds an application for certiorari . On that basis the application is granted. The s. 486.3(4) order made by the trial judge is quashed and the matter is remitted to him for re-hearing.
The second issue concerns the applicant’s request for a copy of the complainant’s video-taped statement. The applicant made that request of the trial judge and the trial judge ruled on it, as he was authorized to do. There is nothing in that ruling that grounds an application for certiorari as distinct from giving rise to a possible ground of appeal. It may well be that, depending on the outcome of s. 486.3(4) application, the trial judge will wish to revisit the disclosure issue but that is a matter for him to decide. The certiorari application is dismissed insofar as it relates to the disclosure.
I – and we could have photocopies of that endorsement, which is in my handwriting made for both counsel and I don't know how it will get into the Ontario Court file but presumably Ms. Montemurro will provide it on the next date.
MS. ELMASRY: Tomorrow.
THE COURT: All right. All right. So I’ll have that photocopied. So, Mr. Amiri, I just want to say to you, although it’s obviously going to be for Justice Minard to decide, in my view you’ve had lots and lots of notice now of the written materials that ground Crown’s counsel’s application. So if Crown counsel should decide to pursue this matter before Justice Minard, and I have suggested that it will be for him to conduct any re-hearing, I’m simply saying that in my view you are not caught by surprise and you should be fully prepared to make oral submissions and/or to cross-examine the affiant if, if that’s what you want to do and the Crown continues to rely on that affidavit, do you understand what I’m saying to you?
ALI AMIRI: Yes, Your Honour.
THE COURT: I – in other words, I don't want this to become a revolving door where each time the Crown attempts to bring the application, your response is, “Well, I haven’t had sufficient notice.” You’ve had lots and lots of notice now, in my view. Although obviously it’s for Justice Minard, ultimately to decide.
ALI AMIRI: Yes, Your Honour.
THE COURT: All right. Thank you.
MS. ELMASRY: Thank you.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Helena Tsapoitis-Barbesin , certify that this document is a true and accurate transcript of the recording of R. v. Ali Amiri, in the Superior Court of Justice, held at 50 Eagle Street West, Newmarket , Ontario, taken from Recording No. 4911 402 20121217 091037, dated December 17, 2012.
Date (Signature of Certified Transcriptionist)
Helena Tsapoitis-Barbesin
ACT ID# 2372561617
1-855-433-2743